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THE  UNIVERSITY 
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MAGNOLIA  MINING  COMPANY  et  al. 

VS. 

MONO  MINING  COMPANY. 


Appeal  from  Commissioner  of  General  Land  Office. 


ARGUMENT  FOR  MAGNOLIA  MINING  COMPANY, 

INCLUDING: 

1,  Opening  Argument  before  Commissioner. 

2,  Keply  to  Argument  of  Mono  Mining  Company, 

3,  Reply  to  Additional  Argument  of  Mono  Mining  Company, 

HALBERT  E.  PAINE, 

Attorney  for  Mnynolin  Minhxj  Compnny. 


WASHINGTON,  I).  ('.: 
M'GILL  &  WITHEBOW,  PRINTERS  AND  STEREOTVPKRS. 
.1875. 


GENERAL  LAND  OFFICE,  WASHINGTON,  D.  C. 


In  the  matter  of  the  application  of  Matthew  T.  Gisborn  and 
others  for  a  patent  for  the  Mono  Mining  Claim,  in  the  the 
Ophir  Mining  District,  Utah  Territorg. 


ARGUMENT  OF  II.  E.  PAINE, 

Counsel  for  Adverse  Claimants,  Lafayette  Granger  and  Farley 
B.  Granger. 

On  the  llth  day  of  November,  1872,  an  application  for 
a  patent  was  filed  with  G.  R.  Maxwell,  register  of  the  land 
office  at  Salt  Lake  City,  by  the  present  Mono  claimants, 
Matthew  T.  Gisborn,  Obadiah  Embody,  Warren  D.  Heaton, 
and  William  E.  Miller. 

On  the  18th  day  of  December,  an  adverse  claim  was 
filed  by  the  present  Magnolia  claimants,  La  Fayette  Gran- 
ger, and  Farley  B.  Granger. 

On  the  6th  day  of  December,  1872,  an  action  was  com- 
menced by  the  adverse  claimants  against  Gisborn,  Embody, 
Heaton,  and  Miller,  in  the  district  court  of  the  third  judi- 
cial district  of  the  Territory  of  Utah,  to  determine  the  right 
of  possession  of  the  property,  which  action  is  still  pending. 

On  the  18th  day  of  December,  1872,  the  notice  to  com- 
mence proceedings  to  determine  the  right  of  possession  was 
served  upon  the  adverse  claimants  by  the  register. 

On  the  31st  day  of  December,  1872,  the  adverse  claim 
of  the  Shoo  Fly  was  filed. 

On  the  7th  day  of  January,  1873,  William  A.  Rooks 
filed  an  adverse  claim. 

On  the  21st  day  of  May,  1874,  after  the  lapse  of  18  months 
from 'the  filing  of  the  adverse  claim,  the  Mono  claimants 
made  an  ex  parte  motion  before  W.  Pottenger,  register, 
and  G.  B.  Overtoil,  receiver  of  the  land  office  at  Salt  Lake 

ps 


City,  to  set  aside  the  adverse  claim  of  the  Magnolia  claim- 
ants as  a  nullity,  and  forward  the  application  for  a  patent, 
which  motion  was  supported  by  an  argument  in  writing. 

On  the  22d  day  of  May,  1872,  the  next  day  after  the  ex 
parte  motion  was  made  and  argued,  the  register  and  receiver 
made  a  written  decision  that  the  adverse  claim  of  La  Fay- 
ette  Granger  and  Farley  B.  Granger  was  a  nullity,  that  the 
Shoo  Fly  claim  had  been  vaived,  that  the  claim  of  W.  A. 
Kooks  was  not  an  adverse  claim  under  the  statute,  and  that 
the  Mono  claimants  had  "done  everything  necessary  to  en- 
title them  to  a  patent,"  and  had  "  a  right  to  enter  their  said 
claim  as  though  there  had  been  no  attempt  to  file  an  ad- 
verse claim." 

I. 

The  register  and  receiver  were  not  competent  to  render 
the  decision  which  purports  to  have  been  made  by  them 
on  the  22d  day  of  May,  1874.  The  question  of  the  formal 
sufficiency  of  the  adverse  claim  of  Lafayette  Granger  and 
Farley  B.  Granger  was,  as  to  those  officers,  res  adjudicate. 
It  was  decided  by  G.  R.  Maxwell,  register  of  the  land  office 
at  Salt  Lake  City,  on  the  18th  day  of  December,  1872.  He 
was  the  officer  upon  whom  devolved,  under  the  statute, 
the  power  and  duty  to  decide  this  question.  He  decided 
it,  not  in  the  way  of  mere  dictum,  but  as  an  official  act,  in 
the  precise  mode  prescribed  by  the  statute,  by  giving  notice 
to  the  adverse  claimants  to  commence  proceedings  to  de- 
termine the  right  of  possession.  The  notice  is  in  these 
words : 

"To  GEO.  C.  BATES,  Esq., 

"Attorney  at  Law,  Soli  Lake  Oily: 

"  SIR  :  The  adverse  claim  of  the  Magnolia  East  and  Mag- 
nolia West  having  been  this  day  tiled  in  this  office  against 
the  Mono  mine,  you  are  hereby  given  notice,  as  attorney 
for  the  parties  for  the  adverse  claim,  that  you  are  required 
within  thirty  days  from  date  to  commence  suit  in  a  court 
of  competent  jurisdiction. 

"Respectfully,  yours, 

"&EO.  R.  MAXWELL,  Register. 

"DECEMBER,  18,1872." 


This  decision,  made  by  a  competent  officer,  in  strict 
conformity  with  the  statute,  cannot  be  reversed  by  his 
successors,  but  only  by  a  higher  authority.  See  Opinions 
of  Mr.  Wirt,  2  Opinions  of  Attorneys  General,  9;  Mr. 
Taney,  2  id.,  464;  Mr.  Nelson,  4  id.,  341;  Mr.  Toucey,  5 
id.,  29;  Mr.  Johnson,  5  id.,  123;  Mr.  Black,  9  id.,  107,  301, 
387;  Mr.  Stanberry,  12  id.,  358;  Mr.  Hoar,  13  id.,  33,  226; 
Mr.  Akerman,  13  id.,  387;  Mr.  Bristow,  13  id.,  457;  Mr. 
Bates,  10  id.,  255;  Mr.  Bates,  contra,  10  id.,  61. 

On  this  ground,  therefore,  the  adverse  claimants  have  a 
right  to  ask,  and  do  ask,  that  this  case  shall  be  remanded 
to  the  local  land  officers,  to  await  the  result  of  the  "pro- 
ceedings to  determine  the  question  of  the  right  of  posses- 
sion "  between  the  parties,  now  pending  in  the  third  judi- 
cial district  of  the  Territory  of  Utah. 

II. 

The  proceeding  of  May  22,  1874,  was  ex  partc.  It  lacked 
the  first  requisite  of  a  fair  adjudication — a  notice  to,  and 
hearing  of,  both  parties.  The  Magnolia  claimants  had  no 
notice  of  the  proceeding  until  after  it  was  consummated. 
The  Mono  claimants,  and  the  Mono  claimants  only,  were 
heard.  This  mode  of  adjudicating  rights  of  property  is 
happily  unknown  to  the  laws  of  the  United  States,  although 
it  is  not  without  precedent  in  the  star  chamber  proceed- 
ings of  the  mother  country.  There  was  no  good  reason 
why  this  self-constituted  court  of  review  was  open  to  one 
party  and  not  to  the  other.  There  was  no  good  reason 
why,  in  the  presence  of  one  party,  and  in  the  absence  of 
the  other,  an  attempt  was  made,  by  a  summary  decision, 
based  on  absurdly  rigorous  technicalities,  to  brush  aside  a 
claim  to  property  admitted  on  all  sides  to  be  of  very  great 
value.  For  this  reason  alone,  that  the  proceeding  was 
wholly  ex  parte,  the  adverse  claimants  would  be  entitled  to 
insist  that  this  motion  should  be  remanded  to  Utah  for  a 
fair  adjudication  upon  a  reasonable  hearing  of  both  par- 
ties. 


III. 

The  first  conclusion  reached  by  the  register  and  re- 
ceiver is  expressed  in  the  following  language:  "We  have 
carefully  examined  the  application  of  the  said  Mono  Mine, 
and  also  all  of  the  adverse  claims  so  filed  against  the  appli- 
cation, and  we  find  that  the  application  of  the  said  Mono 
mining  claim  has  been  regular  in  this  office,  and  that  the 
applicants  for  a  patent  for  the  same  have  done  everything 
necessary  to  entitle  them  to  a  patent." 

The  Commissioner  will  probably  reach  a  different  con- 
clusion. He  will  find  that  the  present  Mono  claimants, 
Gisborn,  Embody,  Heaton,  and  Miller,  have,  by  their  own 
showing,  foreclosed  the  possibility  of  obtaining  such  a  patent 
as  they  seek.  They  ask  for  a  patent  of  a  rectangular  claim, 
1,600  feet  in  length  and  100  feet  in  width,  with  its  centre 
line  bearing  S.  83°  30'  E.,  and  with  its  centre  point  at  a 
discovery  hole  situated  in  the  direction  of  S.  64°  W.  from 
"U.  S.  Mineral  Monument  No.  6,"  and  at  a  distance  of 
450  feet  from  that  monument.  They  claim  that  on  the 
12th  of  November,  1871,  seven  persons  undertook  to  lo- 
cate the  1,600  feet  in  undivided  shares,  as  follows,  W.  D. 
Heaton  266$,  M.  T.  Gisborn  266f ,  O.  Embody  266f ,  H.  D. 
Converse  200,  T.  R.  Miller  200,  Calvin  Kirk  200,  and  E. 
McKendry  200,  in  the  aggregate  1,600  feet.  They  say  (in 
paragraph  2  of  their  application)  that  the  right  of  these 
seven  persons  to  claim  and  hold  more  than  1,400  feet 
being  -questioned,  on  the  12th  clay  of  August,  1872,  Wil- 
liam E.  Miller  relocated  200  feet  undivided  of  the  1,600 
feet  first  claimed.  And  they  claim  that  they,  Gisborn, 
Embody,  Heaton,  and  W.  E.  Miller,  are  now,  by  virtue 
of  proper  transfers,  the  legal  owners  of  the  claim  to  the 
1,600  feet. 

The  following  is  the  notice  of  location  of  November  12, 
1871,  as  shown  in  Exhibit  No.  1,  attached  to  the  applica- 
tion of  the  Mono  claimants: 


"Notice  of  Location. 

"We,  the  undersigned,  claim  (8)  eight  claims  of  (200) 
two  hundred  feet  each,  on  the  course  of  this  ledge  or  lead 
of  mineral-bearing  rock  or  earth  in  place  whichever  way 
it  may  run;  the  supposed  course  is  easterly  and  westerly, 
commencing  at  this  monument  and  notice  and  extending 
each  way  (800)  eight  hundred  feet,  which  we  intend  to 
hold  subject  to  the  mining  laws  of  the  United  States  and 
the  local  laws  of  this  district. 

"OPHIR  DISTRICT,  TERRY,  or  UTAH,  November  12, 1871. 

"W.  HEATON,  266 J. 

"M.  T.  GISBORN,  266|. 

"  0.  EMBODY,  266f . 

"H.  D.  CONVERSE,  200. 

"T.  K.  MILLER,  200. 

"  CALVIN  KIRK,  200. 

"E.  MCKENDRY,  200." 

The  following  is  the  notice  of  location  of  August  12, 
1872,  as  shown  by  the  same  Exhibit  (No.  1 :) 

"Notice. 
"Mono  Relocation  of  200  feet. 

"I,  the  undersigned,  a  citizen  of  the  United  States  of 
America,  do  hereby  relocate  and  claim  one  claim  of  two 
hundred  (200)  feet  in  length,  undivided  ground,  in  the 
Mono  lode,  vein,  or  deposit  of  silver-bearing  ore,  located 
the  12th  day  of  November,  A.  D.  1871,  and  tiled  for  record 
on  the  24th  day  of  November,  A.  I).  1871,  in  the  office  of 
the  recorder  of  Ophir  mining  district,  Tooele  county, 
Utah  Territory,  including  all  the  dips,  spurs,  angles,  and 
variations,  and  running  on  and  along  the  course  of  the 
lode,  vein,  or  deposit  from  the  monument  on  which  this 
notice  is  placed  for  the  distance  located. 

"I  claim  this  claim  on  tho  ground  that  there  is  no  dis- 
covery claimed  in  the  original  notice  of  the  location  of  the 
said  Mono  lode,  vein,  or  deposit,  as  seven  persons  located 
sixteen  hundred  (1,600)  feet  therein,  being  an  excess  of 
two  hundred  feet  (200)  allowed  by  the  act  of  Congress  in 
such  cnsen  made  and  provided  to  seven  persons  when  no 
discovery  is  claimed. 

uAnd  T  Hjnm  this  claim  on  the  further  ground  that  tho 
locators  of  the  said  Mono  lode,  vein,  or  deposit,  are  not 


entitled  to  a  discovery  claim  therein,  the  same  lode,  vein, 
or  deposit  having  been  previously  discovered,  located,  and 
recorded  under  another  name. 

"W.  E.  MILLER. 
"  OPHIR  MINING  DISTRICT, 

"TooELE  COUNTY,  UTAH  TER.,  August  12, 1872." 

The  following  is  the  second  paragraph  of  the  application 
for  a  patent  in  the  case  now  pending: 

"Second.  A  question  being  debated  whether  the  said 
locators  were  entitled  to  claim  and  hold,  by  said  location, 
the  whole  of  said  1,600  feet,  or  any  more  than  1,400  feet 
thereof,  the  said  applicant,  \Vm.  E.  Miller,  on  the  12th  day 
of  August,  1872,  with  the  consent  of  all  the  persons  then 
owning  and  holding  the  possessory  right  to  said  1,600  feet, 
relocate  200  feet  of  the  same,  by  posting  a  written  notice 
thereon,  and  having  the  same  recorded  by  said  Mining 
Recorder  on  the  same  day." 

!N"ow,  if  no  superior  claims  had  prevented,  it  would  of 
course  have  been  competent  for  the  seven  original  locators, 
on  the  12th  of  November,  1871,  either  to  locate  seven  sep- 
arate claims  of  200  feet  each,  which,  if  contiguous  to  each 
other,  would  constitute  in  the  aggregate  a  claim  of  1,400 
feet,  or  to  locate  one  entire  undivided  claim  of  1,400  feet, 
in  which  each  should  have  an  undivided  share  of  200  feet. 
But  it  was  not  competent  for  them  to  locate  seven  separate 
claims,  of  which  four  should  contain  200  feet  each  and 
three  266-f  feet  each,  and  which,  being  contiguous  to  each 
other,  would  constitute  in  the  aggregate  a  claim  of  1,600 
feet.  Nor  was  it  competent  for  them  to  locate  one  undi- 
vided claim  of  1,600  feet,  in  which  Heaton,  Gisborn,  and 
Embody  should  own  each  266f  feet,  and  Converse,  T.  K. 
Miller,  Kirk,  and  McKendry  each  200  feet.  !STor  was  it 
competent  for  these  seven  original  locators  to  locate  an 
entire  undivided  claim  of  1,600  feet,  in  which  each  should 
own  200  feet  undivided,  amounting  in  the  aggregate  to 
1,400  feet,  the  remaining  200  feet  being  without  owner. 
These  seven  persons  could  not  alone  locate  1,600  feet  undi* 
vided,  or  any  part  of  1,600  feet  undivided.  They  could  no 
more  fasten  on  a  claim  of  1,600  feet,  by  appropriating  seven 


eighths  undivided  of  the  claim,  and  leaving  one  undivided 
eighth  part  vacant,  than  the}^  could  fasten  on  3,000  feet  by 
claiming  seven  fifteenths  and  leaving  eight  fifteenth  parts 
vacant.  The  seven  original  locators  could  only  locate,  or 
claim,  interests,  whether  undivided  or  in  severally,  in  1,400 
feet.  This  location  of  November  12,  1871,  was  at  its  in- 
ception a  violation  of  section  4  of  the  act  of  July  26,  1866, 
which  provides  that  "  no  location  hereafter  made  shall  ex- 
ceed 200  feet  in  length  along  the  vein,  for  each  locator, 
with  an  additional  claim  for  discovery  to  the  discoverer  of 
the  lode,"  and  "that  no  person  may  make  more  than  one 
location  on  the  same  lode;  and  not  more  than  3,000  feet 
shall  be  taken  in  any  one  claim  by  any  association  of  per- 
sons." The  original  location  was  therefore  invalid  at  its 
inception.  It  is  invalid  still,  unless  it  has  acquired  validity 
from  the  so-called  relocation  of  200  feet  undivided,  which 
W.  E.  Miller  attempted  to  make  on  the  12th  of  August, 
1872. 

If  the  location  of  the  1,600  feet  has  indeed  acquired  valid- 
ity from  this  latter  location,  then  the  true  date  of  the  entire 
location  is  August  12,  1872.  The  act  of  W.  E.  Miller, 
performed  on  the  12th  of  August,  1872,  cannot,  by  relation, 
have  such  efficacy  that  a  location  by  seven  persons,  which 
was  in  reality  invalid  from  November  12,  1871,  to  August 
12,  1872,  shall  be  thereby  made  valid  from  November  12, 
1871,  to  August  12, 1872.  The  most  that  could  be  claimed 
would  be  that  the  location  of  200  feet  undivided  by  W.  E. 
Miller,  with  the  concurrence  of  the  seven  original  locators, 
should  be  accepted,  in  conjunction  with  such  concurrence,  as  a 
virtual  new  location  of  the  whole  in  undivided  eighth  parts 
on  the  12th  of  August,  1872.  But  even  that  would  not  be 
justified  either  by  the  letter  or  the  spirit  of  the  law.  Such 
slipshod,  fragmentary  methods  would  be  wholty  inadmis- 
sible. In  the  present  case,  however,  not  even  this  claim 
can  be  made.  It  is  not  pretended  that  either  Converse,  T. 
R.  Miller,  Kirk,  or  McKendry  ever  concurred  in  any  such 
relocation.  On'  the  contrary,  it  is  shown  by  the  Mono 
claimants  themselves  that  nothing  of  the  kind  happened, 


8 

or  could  have  happened;  and  it  is  further  shown  by  them 
that,  by  the  action  of  the  original  locators,  between  the 
12th  of  November,  1871,  and  the  12th  of  August,  1872, 
the  possibility  of  a  cure  of  the  invalidity  of  the  original 
location,  by  virtue  of  the  location  of  August  12,  1872, 
had  been  wholly  destroyed.  For  it  is  alleged  in  the  4th 
paragraph  of  the  application  of  the  Mono  claimants  that 
Converse,  T.  R.  Miller,  Kirk,  and  McKendry  conveyed  400 
feet  undivided  of  the  1,600  feet  to  Embody  on  the  17th  of 
February,  1872,  and  also  400  feet  undivided  of  the  1,600 
feet  to  Embody,  Gisborn,  and  Heaton  on  the  23d  day  of 
May,  1872;  so  that  on  the  12th  day  of  August,  1872,  when 
W.  E.  Miller  attempted  to  give  life  to  this  undivided  claim 
of  1,600  feet,  four  of  the  original  owners  had  parted  with 
whatever  interest  they  ever  pretended  to  hold  in  the  claim, 
and  they  could  by  no  possibility  concur  in,  or  consent  to, 
this  new  location  of  W.  E.  Miller.  Nor  is  it  pretended 
that  they  did  so  concur  or  consent.  On  the  contrary,  it  is 
alleged  in  the  2d  paragraph  of  the  application  that  "  Wm. 
E.  Miller,  on  the  12th  day  of  August,  1872,  with  the  con- 
sent of  all  the  persons  then  owning  and  holding  the  possessory 
right  to  said  1,600  feet,"  relocated  the  same.  It  is  there- 
fore not  claimed  that  Converse,  T.  R.  Miller,  Kirk,  or 
McKendry  ratified  this  new  arrangement,  so  as  to  make 
it  relate  back  to  and  validate  their  orginal  locations.  It 
is  probably  claimed  that  the  consent  of  their  grantees,  Em- 
body, Gisborn,  and  Heaton  gave  to  this  attempted  location 
of  W.  E.  Miller  such  efficacy  that  it  cured  the  original  in- 
validity of  the  entire  location,  notwithstanding  one-half  of 
the  original  locators  had  parted  with  all  interest  in  the 
1,600  feet,  and  the  whole  had  passed  to  four  claimants,  the 
present  applicants  for  the  patent.  But  this  claim  cannot  be 
maintained. 

In  the  first  place,  the  'only  theory  upon  which  the  loca- 
tion of  200  feet  by  W.  E.  Miller,  in  1872,  could,  by  any 
possibility,  be  permitted  to  patch  up,  and  make  complete, 
a  location  of  1,600  feet  made  by  seven  persons  in  1871,  is 
that  when  Miller  acted  the  other  seven  also  virtually  acted 


anew  as  locators,  being  qualified  and  competent  under  the 
law.  If  it  was  impossible  for  seven  persons,  on  the  12th 
day  of  November,  1871,  to  locate  1,600  feet,  by  taking 
undivided  shares  therein,  a  fortiori  was  it  impossible  for 
four  persons,  on  the  12th  day  of  August,  1872,  to  locate 
1,600  feet,  by  the  circuity  of  a  purchase  of  a  part  and  a 
relocation  of  the  residue.  The  question  is  not  whether 
undivided  interests  can  be  purchased  and  consolidated 
after  location,  but  whether  they  can  be  located  after  pur- 
chase and  consolidation.  To  this  question  there  is  but  one 
answer. 

In  the  second  place,  if  it  is  true,  as  alleged  in  the  4th 
paragraph  of  the  application  for  a  patent,  that  Converse, 
T.  R.  Miller,  Kirk,  and  McKendry  attempted  to  convey 
400  feet  undivided  of  the  1,600  feet  to  Embody,  on  the  17th 
of  February,  1872,  and  400  feet  undivided  to  Embody,  Gis- 
born,  and  Heaton,  on  the  23d  of  May,  1872,  yet  by  such 
conveyance  these  grantees  acquired  no  interests  in  the 
claim; — for  the  grantors  did  not,  and  could  not,  hold  any 
interest  in  the  1,600  feet  undivided  capable  of  transfer, — 
their  claim  was  invalid  in  their  own  hands,  and  it  gained 
nothing  by  a  transfer  to  other  hands.  The  fatal  illegality 
of  a  location  of  1,600  feet  by  seven  claimants  is  not  cured 
by  a  transfer  to  four  or  to  four  hundred.  If  possible,  it 
would  rather  be  aggravated  by  such  illegal  transfer.  The 
illegality  would  be  made  twofold. 

But,  in  the  third  place,  the  allegation  of  the  fourth  para- 
graph of  the  application,  that  Converse,  T.  li.  Miller,  Kirk, 
and  McKendry,  conveyed  undivided  interests  of  400  feet  on 
the  17th  of  February  and  23d  of  May,  1872,  is  not  estab- 
lished by  the  abstract  of  conveyances  presented  by  the 
Mono  claimants  in  Exhibit  No.  2.  It  does  not  appear 
whether  grants  of  undivided  or  several  interests  were 
attempted.  While  both  would  be  equally  illegal,  yet, 
under  the  circumstances,  the  latter  would  he  rather  more 
absurd. 

The  attempt,  therefore,  to  make  any  use  of  the  imagin- 
ary interests  of  Converse,  T.  R.  Miller,  Kirk,  and  McKen- 


10 

dry  in  this  patchwork  wholly  fails.  If  Heaton,  Gisborn, 
and  Embody  have  succeeded,  by  their  consent  to  Miller's 
arrangement,  in  imparting  any  virtue  to  their  own  original 
individual  locations,  that  is  the  limit  of  their  success.  But 
they  have  not  even  accomplished  that.  Four  persons  can- 
not alone  locate  any  undivided  interest  in  1,600  feet.  They 
can  neither  locate  the  whole,  nor  800  feet  undivided,  nor 
any  other  undivided  part  of  1,600  feet.  So  the  present 
application  of  the  Mono  claimants  for  a  patent,  must,  in 
any  event,  be  denied,  and  they  must  resort  to  a  new  appli- 
cation, if  not  also  to  a  new  location,  to  secure  whatever 
interests  they  may  have  in  these  mines. 

To  meet  the  requirements  of  the  41st  regulation  of  the 
General  Land  Office,  the  following  paper  is  tiled: 

"  UNITED  STATES  LAND  OFFICE,, 

SALT  LAKE  CITY. 

"I  hereby  certify  that  the  accompanying  plat  and  notice 
was  posted  in  this  office  in  a  conspicuous  place  for  the  full 
period  of  sixty  (60)  days,  to  wit,  from  the  12th  day  of  No- 
vember, 1872,  to  the  13th  day  of  January,  1873,  both  dates 
inclusive.  GEO.  K,  MAXWELL,  Register." 

This  document  is  without  date.  But  Willett  Pottinger, 
the  present  register  of  the  land  office  at  Salt  Lake  City,  in 
his  letter  of  transmittal  of  May  22,  1874,  says:  "The  pa- 
pers are  complete  with  the  exception  of  George  R.  Max- 
well's (former  register)  signature  to  the  posting  of  the  plat 
and  notice  in  a  conspicuous  place  in  this  land  office  for  the 
period  of  sixty  (60)  days.  Mr.  Maxwell  is  now  in  Wash- 
ington; has  been  requested  to  call  at  the  General  Land 
Office  and  furnish  the  same."  The  regulation  requires  the 
register,  not  the  marshal,  to  certify  to  this  fact.  Mr.  Max- 
well's statement  was  made  after  May  22, 1874,  and  was  no 
more  an  official  certificate  than  would  be  a  similar  state- 
ment from  Mr.  Embody  himself. 

IV. 

Passing  over  the  points  in   the  decision  of  the  register 
and  receiver  which  relate  to  other  adverse  claimants,  I  will 


C/ 


V 


11 

next  consider  the  four  grounds  on  which  they  base  their 
conclusion  that  the  adverse  claim  of  Lafayette  Granger  and 
Farley  B.  Granger  is  to  be  dismissed  as  a  nullity. 

The  first  is  stated  generally  in  these  words:  "  In  the  first 
place  the  adverse  claimants  have  utterly  failed  to  designate 
the  points  of  conflict  between  the  Mono  application  and 
the  Magnolia  adverse  claim,  either  by  the  plat  of  survey, 
which  they  have  filed  with  their  adverse  claim,  or  by  any 
of  the  allegations  set  forth  in  the  adverse  claim  ifself." 
In  this  the  officers  are  wholly  mistaken.  On  the  contrary, 
in  the  plat  which  accompanies  and  constitutes  a  part  of 
their  adverse  claim,  they  fix  the  "points  of  conflict"  with 
such  precision  that  a  surveyor  can,  by  means  of  that  plat, 
lay  out  upon  the  ground  the  quadrilateral  in  dispute  with 
the  utmost  accuracy  of  which  such  work  admits.  They 
give  as  the  point  of  reference  United  States  Mineral  Monu- 
ment No.  6,  and  connect  with  this  monument,  directly  or 
indirectly,  by  bearings  and  distances,  the  discovery  holes 
and  corners  of  the  Magnolia  and  Mono  claims,  and  the 
four  points  at  which  their  boundaries  intersect  each  other. 
With  the  aid  of  this  plat,  and  without  any  other  data  what- 
ever, the  surveyor  can,  1^  the  usual  calculations,  ascertain 
the  distances  and  bearings  of  the  corners  of  the  overlap 
from  Monument  No.  6,  from  the  corners  of  the  respective 
claims,  and  from  each  other.  Id  cerium  est  quod  cerium  reddi 
potest.  An '1  proceeding,  to  the  ground,  with  no  other  data 
except  such  as  are  furnished  by  this  plat,  he  can  lay  out  the 
parallelogram  of  intersection  of  the  Magnolia  and  Mono 
claims  with  the  highest  degree  of  precision  attainable  in 
such  crises. 

The  accompanying  plate  is  a  copy  of  the  diagram  or  plat 
which  was  filed  with  the  adverse  claim.  It  contains  nothing 
which  the  plat  itself  does  not  contain,  except  the  dotted 
lines  DD',  D'K,  A'D,  A'K,  ON,  B'C',  OR,  AR,  BF,  AF, 
and  AQ,  which  are  introduced  for  use  in  the  calculations, 
in  which  only  the  elements  furnished  by  the  plat  are  used. 

The  initial   point  B  of  the   boundary  of  the   Magnolia 


12 

claim  is  shown  by  the  plat  to  be  N.  55°  E.,  45  feet  from 
the  United  States  Mineral  Monument,  JSTo.  6.  The  first 
course,  BC,  being  parallel  with  the  southwest  end,  TV,  of 
the  Magnolia  West,  which  is  at  right  angles  with  the  centre 
line  KUof  the  Magnolia  West,  has  a  bearing  of  S.  45°  E.y 
and  passes  through  the  extremity  of  the  centre  line  of  the 
Magnolia  East.  The  distance  BC  is  readily  ascertained, 
being  the  hypothenuse  of  a  right-angled  triangle,  of  which 
the  base  is  200  feet,  the  width  of  the  Magnolia  claim,  and 
the  acute  angle  C  is  the  supplement  of  73°4- 45°=62°. 
This  distance  (BC)  is  226  feet. 

The  second  course  CD=C'K-4-B'0— A'K  But  C'K  = 
1,000  feet.  A'K  is  readily  found  to  be  25  feet,  being  the 
altitude  of  a  right-angled  triangle,  of  which  the  base 
A'D^lOO  feet,  one-half  the  width  of  the. Magnolia  claim; 
the  angle  A'KD^J  (4504-170+900)=76°;  and  the  angle 
A'DK=:900— 76°— 14°.  In  like  manner  B'C  is  found  to- 
be  53  feet,  being  the  altitude  of  the  right-angled  triangle 
B'CC',  of  which  two  sides  and  all  the  angles  are  known. 
Therefore  the  second  course  C  D=C'K+B'  C— A'K=1,000 
+53 — 25=1,028  feet.  The  bearing  of  this  course  is  shown 
to  be  S.  73°  W. 

The  third  course  DT=UK—D'K=800— 25=775  feet; 
and  its  bearing  is  S.  45°  W. 

The  fourth  course  TV  is  K  45°  W.  200  feet. 

The  fifth  course  VE=TD+ 2 D '.£=775+50=825  feet; 
and  the  bearing  is  laid  down  as  N.  45°  E. 

The  sixth  and  last  course  EB=KC'4-KA'— B'C=1000+ 
25—53=972  feet. 

The  distances  and  directions  of  the  point  of  intersection 
F  of  the  Magnolia  and  Mono  claims  from  the  corners  B 
and  C  of  the  Magnolia,  the  corner  0  of  the  Mono,  and  the 
United  States  Mineral  Monument,  No.  6,  (A,)  respectively, 
may  be  ascertained  as  follows: 

In  the  triangle  ABE'  the  side  AB=45  feet,'  the  angle 
ABE'=450-f55°  30'=100°  30';  the  angle  BAE'=supple- 

the  angle  AE'B=44°. 


13 

Sin  AE'B  14°,  (Ar.  Comp.,)- — -     ,616325 

Sin  BAE'  65°  30' - 9.959023 

AB  45  feet-  .  1.653213 


BE'  169^  feet-  -  2.228561 

Sin  AE'B  14°,  (Ar.  Comp.,) .616325 

Sin  ABE'  100°  30'  (79°  30')- -- 9.992666 

AB  45  feet-  .  1.653213 


AE'  182  ,90  feet-  -  2.262204 

But  CE/=BC—BE/=226— 169^— 56^  feet. 
Hence  in  the  triangle  CE'N  the  side  CE/=56170  feet; 

the  angle  CE/N=14°;  the  angle   E'CN=:1800— B'CE'= 

180°— 62°=118°;the  angle  CNE'=48°. 

Sin  CNE'  48°,  (Ar.  Comp.,) 128927 

Sin  E'CN  118°       (62°)  9.945935 

E'C  56,70  feet 1.753583 


E'JST  6713070  feet -  .—  1.828445 

Sin  ONE'  48°,  (Ar.  Comp.,) .128927 

Sin  CE'N14° 9.383675 

CE'56,70  feet - 1.753583 


CN  ISjVo  feet-  .  1.266185 

In  the  triangle  FNO  the  side  NO^AO— (AE'-f ErN)= 
462— 250lV0=211IVo  feet;  the  angle  FON"=83°  30X— 
59°=24°  30r;  the  angle  KFO^supplement  of  73°+83° 
30/—23°  30X;  the  angle  FNO—1320. 

Sin  NFO,  23°  30',  (Ar.  Comp.,) .399300 

Sin  FOE",  24°  30' 9.617727 

NO,  211,%  feet 2.325721 


FN,  220,2o  feet 2.342748 


14 

But  CF=FN—  CN=220TV-181V^=201t1Vt  feet. 

And  Sin  FFO,  23°  30',  (Ar.  Comp.,)  ___________  .399300 

Sin  FNO,  132°,             (48°)        ____________  9.871073 

NO  211,70  ______  _____________  —  -—  -  2.325721 

FO  394  ________________________________     2.696094 

To  find  the  distance  and  direction  of  1?  from  Bi 
In  the  triangle  CBF  the  si'de  BC=226  feet;  the  side 
CF=2011Vo  feet;  the  angle  BCF=62°;  the  angles  BFC+ 


BC+CF,  427  ,V0  feet,  (Ar.  Comp.,)  ___________  -     7.368861 

BC—  OF,  24,20«0  feet  -----------------------------     1.384891 

Tan.  i  (BFC+CBF)  59°  ______________________  —  10.221226 

Tan.  i  (BFC—  CBF)  5°  23'  ____________________     8.974978 


Hence  the  angle  BFC=64°  23';  the  angle  CBF=53° 
37';  therefore, 

Sin  CBF,  53°  37',  (Ar.  Comp.,)— -       .094168 

Sin  BCF620 —     9.945935 

CF  2017^-  feet 2.304706 


BF  221  ,a0  -feet--      2.344809 

BF  is  S.  8°  37r  W.  221,%  feet. 

To  find  the  distance  and  direction  of  I  from  B. 

In  the  triangle  BFI  the  side  BF=221120  feet;  the  angle 
FBI=73°— 8°  37'= 64°  23r;  the  angle  BIF-=23°  30';  the 
angle  BFL=92°  7r. 

Sin  BIF,  23°  30r,  (Ar.  comp.,) .399300 

Sin  BFI,  92°  7r,      (87°  53',)    9.999704 

BF  221,^  feet 2.344785 


BI  554^  feet_.  2.743789 

BlisS.  73°  W.  554 ,30  feet. 
To  find  FI,  one  of  the  sides  of  the  overlap : 

Sin  BIF,  23°  30',  (Ar.  Comp.,) .399300 

Sin  FBI,  64°  23' - 9.955065 

BF,  221,2,  feet 2.344785 

FI,  500  «<,  feet 2.699150 


15 

To  find  the  side  FG : 

In  the  triangle  FGP  the  side  GP— width  Mono  claim— 
100  feet;  the  angle  FPG=90°;  the  angle  GFP=23°  30'; 
the  angle  FGP=66°  30'. 

Sin  GFP,  23°  30',  (Ar.  Comp.,) .399300 

SinFPG,  90°--    -—  10.000000 

GP  100  feet  -  2.000000 


FG  250^  feet-  2.399300 

F£isS.  73°  W.,250,80  feet. 

In  some  of  the  foregoing  calculations  the  bearing  and 
distance  BC  are  used  as  elements.  This  is  proper,  for 
the  plat  shows  upon  its  face,  without  the  aid  of  figures 
or  letters,  that  the  southwest  end  of  the  Magnolia  West  is 
at  right  angles  with  the  center  line,  and  that  the  northeast 
end  of  the  claim  is  parallel  with  the  southwest  end.  This 
evidence  of  the  plat  acquires,  although  it  does  not  need, 
confirmation  from  the  statutorj-  provisions  relating  to  the 
subject.  The  act  of  July  26, 1866,  contains  no  direct  provision 
respecting  the  contents  of  the  location  notice.  Indeed,  it 
does  not  even  provide  for  posting  or  recording  any  such 
notice.  By  virtue  of  the  first  section  of  the  act,  the  con- 
tents of  the  notice,  as  well  as  the  mode  of  posting  and 
recording  it,  were  prescribed  by  the  local  rules  or  laws  of 
the  miners  of  the  district.  The  rules  of  this  district,  in 
force  from  August  6,  1870,  to  June  10,  1872,  did  not  re- 
quire the  notice,  except  in  cases  of  tunnel  locations,  to 
contain  any  statement  respecting  the  extent  or  direction  of 
the  end  lines  of  a  claim.  They  required  the  notice  to  con- 
tain a  statement  of  the  length  along  the  lode,  but  not  of  the 
width  of  the  claim.  The  width  was  determined  by  the  third 
section  of  the  miners'  laws,  and  not  by  anything  in  the 
location  notice.  Furthermore,  it  was  not  required  to  state, 
in  the  notice,  the  direction  of  the  end  lines,  nor  was  there  in 
the  written  rules  or  laws  of  the  miners  any  provision  reg- 
ulating the  direction  of  these  lines  The  rules  require 
that  the  notice  shall  show  (1)  the  length  of  the  claim,  (2) 


16 

the?  length  of  the  claim  on  each  side  of  the  monument,  (3) 
the  names  of  the  locators,  (4)  the  number  of  feet  claimed 
by  each,  and  (3)  the  name  of  the  lode.  Provision  is  also 
made  for  posting  and  recording  the  notice.  When  the 
claimant  comes  to  apply  for  his  patent,  under  the  second 
section  of  the  act  of  1866,  he  must,  in  his  plat  or  diagram, 
determine  the  lateral  extension  of  his  claim  in  accordance 
with  the  local  laws,  customs,  and  rules  of  miners. 

If  the  application  of  the  Mono  claimants  for  a  patent  had 
been  made  before  the  enactment  of  the  law  of  May  10, 
1872,  the  direction  of  the  end  lines  of  the  claim,  if  capable 
of  deviation  from  perpendicularity  to  the  center  line  of  the 
claim,  would  have  been  subject,  perhaps,  to  the  unwritten 
customs  and  rules  of  miners  in  force  at  the  time.  And  the 
adverse  claim  of  the  Magnolia  claimants  would  have  heen 
subject  to  the  same  rules.  But  this  was  all  changed  by  the 
act  of  May  10, 1872.  By  the  second  section  of  the  new  act 
it  is  provided  that  the  length  of  the  claim  shall  be  governed 
by  the  customs,  regulations,  and  laws  in  force  at  the  date 
of  the  location.  This  excludes  the  idea  that  the  width  is  to 
be  so  governed.  Still  more  clearly  does  it  exclude  the 
idea  that  the  direction  of  the  end  lines,  which  was  not  cov- 
ered by  written  regulations  at  all,  shall  be  so  governed. 
Besides,  it  is  provided,  in  the  last  clause  of  the  section, 
that  u  the  end  lines  of  each  claim  shall  be  parallel  to  each 
other."  This  latter  provision  is  applicable  to  the  present 
case.  The  southwest  end  of  the  claim  being  laid  down  on 
the  plat  at  right  angles  with  the  course  of  the  claim,  the 
northeast  end  is  required  by  the  statute  to  be,  as  the  plat 
shows  it  is,  parallel  therewith  ;.and  its  bearing  is  S.  45°  E. 
And  this  could  hardly  be  more  clear  than  it  now  is,  even 
if  the  surveyor  had  not,  by  an  oversight,  omitted  to  record 
on  the  plat  the  bearings  of  these  two  end  lines,  but  had, 
in  fact,  indicated  the  first  as  S.  45°  E,  and  the  other  as  N. 
45°  W.  Whether  the  statute,  however,  does  or  does  not 
require  these  two  ends  to  be  parallel,  the  map  shows  that 
they  are  parallel. 

But  if  the  adverse  claimants  are  to  be  distinguished  by 


17 

confinement  in  this  straight-jacket  of  formality,  and  not 
permitted  to  use,  as  elements  of  their  case,  the  bearing  and 
length  of  the  first  course  BC,  fortunately  for  them  this  un- 
wonted rigor  will  not  prove  fatal  or  seriously  injurious. 
For  if  those  elements  shall  be  wholly  omitted,  the  other 
data  of  the  plat  and  adverse  claim  will  not  only  give  the 
form,  dimensions,  boundaries,  and  position  of  the  overlap, 
which  is  the  essential  requirement,  but  also  all  the  sides 
and  angles  of  both  claims,  except  only  the  end  BC  and  the 
exact  length  of  the  side  CD,  which  latter  they  will  deter- 
mine with  an  approximation  towards  exactitude  considera- 
bly in  excess  of  the  demands  of  the  case. 

To  find  the  several  bearings  and  distances  without  using 
the  course  BC  : 

Draw  AR  at  right  angles  with  CD,  AQ,  at  right  angles 
with  BE,  and  draw  OR. 

Then  in  the  triangle  ABQ  the  side  AB=45  feet;  the 
angle  AQB=90°  ;  the  angle  ABQ=73°-55°  30'=17°  30'; 
the  angle  BAQ=72°  30'. 

Sin  AQB,  90°,  (Ar.  Cornp.,) .000000 

Sin  ABQ,  17°  30' 9.478142 

AB,  45  feet 1.653213 


>  13,5o3o  feet  -  1.131355 

Sin  AQB, -90°,  (Ar.  Comp.) .000,000 

Sin  BAQ,  72°  30' 9.979420 

AB,  45  feet 1.653213 


BQ,  42-^  feet  ..  1.632633 

In  the  triangle  AOR  the  side  A0=462  feet;  the  side 
AR=200— 13^0=186. ^  feet;  the  angle  OAR=OSK— 
90°— 132°— 90°=42°. 

AO+AR,  648iyo  feet,  (Ar.  Comp.) 7.188090 

AO— AR,  275,-Vo  feet —     2.440122 

Tan  J,  (ARO+AOR,)  69° 10.415823 


Tan  },  (ARO— AOR,)  47°  54' 10.04403$ 

3 


18 

Hence  the  angle  ARO=116°  54',  and  the  angle  AOR= 
21°  6'. 

Sin  AOR,  21°  6',  (Ar.  Coinp.,)  _________________     .443701 

Sin  OAR,  42°  ____________________________________  9.825511 

feet  .....  ________________________  2.270679 


OB,  346/0  feet  __________________  -  ___________  2.539891 

In  the  triangle  FOR  the  side  R0=346/0  feet;  the  angle 
FOR=AOF—  AOR=24°  30'—  21°  6'=3°  24'  ;   the  angle 
OFR=23°  30';  the  angle  FRO—  153°  6'. 
Sin  OFR,  23°  30',  (Ar.  Comp.,)  ________________  -       .399300 

Sin  FRO,  153°  6'  (26°  54')  _____  ________  ________     9.655556 

OR  346,70  feet  ______________________________     2.539954 

FO  394  _____________________________________     2.594810 

The  distance  from  0  to  F  is  therefore  394  feet. 
To  find  the  distance  of  the  p^int  of  intersection  F  from 
the  foot  of  the  perpendicular  drawn  from  the  corner  B  to 
the'  side   CD  of  the  Magnolia  claim,  without  using  the 
course  BC: 
Sin  OFR  23°  30',  (Ar.  Comp.,)  _________________       .399300 

Sin  FOR  3°  24'  ____________  ____________________     8.773101 

OR  346/0  ____________________________  .  _______     2.539954 


FR  51,5060 1.712355 

But  the  distance  of  the  point  of  intersection  F  from  the 
foot,  of  the  perpendicular  drawn  from  B  to  CD  is  equal  to 
FR+BQ=51  ^+42 ,•».  =94 ,«  feet. 

By  means  of  the  triangle  ARF  the  distance  and  bearing 
of  the  point  of  intersection  F  from  the  United  States  Min- 
eral Monument  No.  6  is  readily  ascertained  without  using 
the  course  BC. 

And  the  point  of  intersection  F  being  so  fixed  with  ref- 
erence to  B,  A,  and  O,  respectively,  without  the  use  of  the 
course  B  C,  the  lengths  of  the  sides  of  the  overlap  are  all 
readily  ascertained  without  any  use  of  the  course  BC. 
The  bearings  of  those  sides  are  laid  down  on  the  plat.  So 


19 

the  boundaries  of  the  overlap  are  fixed  with  the  utmost 
precision  without  any  use  of  the  course  BC. 

Omitting  from  consideration  the  .bearing  and  distance 
BC,  we  nevertheless  find,  from  the  other  data  of  the  plat, 
that  CF  must  be  very  nearly  200  feet.  For  by  extending  OA 
to  its  intersection  with  EB,  and  drawing  a  line  from  B, 
through  S,  the  intersection  of  AO  and  KG',  to  DC,  we  cut  off 
equal  distances  on  EB  and  ND,  which  are  readily  found  to 
be  55  feet.  If  therefore  BC  and  AO  intersected  each  other 
at  N,  CF  would  equal  FN,  which  has  already  been  shown, 
without  the  use  of  the  bearing  or  distance  BC,  to  equal 
220^  feet.  If  these  lines  intersected  at  S,  the  intersection 
of  AO  and  KC',  FC  would  equal  FN— 55  feet=165130. 
But  the  relation  of  E',  the  point  of  intersection  of  BC  and 
AO  to  the  other  two  points,  N"  and  S,  as  laid  down  on  the 
plat,  is  such  as  to  show  that  FC  must  be  very  nearly  200 
feet. 

A  change  in  CF  will  not  affect  BL  The  changes  in  EH 
and  DG  will  be  only  one-half  that  in  CF.  For  two  lines 
drawn  from  B  to  CF.  cut  off,  on  KG',  only  one-half  the 
distance  cut  off  on  CF. 

The  following,  then,  are  the  bearings  and  distances 
shown  by  the  adverse  claim  and  plat : 

AB  K»55°  30'  E.  45  feet;         AL  S.  64°  W.  450. 

AO  S.  59°  E.  462 ;  AR  S.  17°  E.  186  ,Vo ; 

BC  S.  45°  E.  226;  CD  S.  73°  W.  1028; 

DT  S.  45°  W.  775 ;  TV  N.  45°  W.  200 ; 

VE  1ST.  45°  E.  825;  EB  N.  73°  E.  972; 

CF  S.  73°  W.  201  ,yo;  OF  N.  83°  30'  W.  394; 

BFS.  8°  37'  W.  221  ^  ;  RF  S.  73°  W.  51  «0 ; 

FG  S.  73°  W.  250,80 ;  GH  S.  73°  W.  500 ,a0 ; 

HI  N.  73°  E.  250^;  IF   S.  83°  30'  E.  500  20; 

GD  S.  73°  W.  575/4;  BI  S.  73°  W.  554,80; 

HE  S.  73°  W.  166  ,V 

The  register  and  receiver  are  therefore  wholly  mistaken 
when  they  say  generally  that,  "in  the  first  place,  the  ad- 
verse claimants  have  utterly  failed  to  designate  the  points 
of  conflict  between  the  Mono  application  and  the  Magnolia 


20 

adverse  claim,  either  by  the  plat  of  survey,  which  they  have 
filed  with  their  adverse  claim,  or  by  any  of  the  allegations 
set  forth  in  the  adverse  claim  itself." 

The  register  and  receiver  are  equally  mistaken  when 
they  add,  with  more  particularity:  "On  a  careful  examina- 
tion of  the  plat,  we  merely  find  a  plain  plat,  with  lines 
drawn  in  different  directions."  They  must  have  been  well- 
nigh  blind  when  they  made  this  careful  examination.  If 
they  saw  only  "lines  drawn  in  different  directions/'  it  was 
not  because  there  was  nothing  else  to  see ;  for  the  plat 
not  only  shows  4ines  drawn  in  different  directions,  but  it 
also  shows — 

1.  That  the  northernmost  point  of  the  Magnolia  claim 
is  45  feet  distant  from  United  States  Mineral  Monument 
No.  6. 

2.  That  the  direction  of  this  point  is  K  55°  30'  E.  from 
the  monument. 

3.  That  the  discovery  hole  of  the  Mono  claim  is  450  feet, 
distant  from  the  monument. 

4.  That  the  direction  of  this  discovery  hole  is  S  .64°  W. 
from  the  monument. 

5.  That  the  northeastern  corner  of  the  Mono  claim  is 
462  feet  distant  from  the  monument. 

6.  That  the  direction  of  this  corner  is  S.  59°  E!  from  the 
monument. 

7.  That  the  length  of  the  centre  line  of  the  Magnolia 
East  is  1,000  feet. 

8.  That  the  bearing  of  this  line  is  K  73°  E. 

9.  That  the  length  of  the  centre  line  of  the  Magnolia 
West  is  800  feet. 

10.  That  the  bearing  of  this  line  is  S.  45°  W. 

11.  That  the  length  of  the  centre  line  of  the  Mono  claim 
east  of  the  discovery  hole  is  800  feet. 

12.  That  the  bearing  of  this  line  is  S.  83°  30A  E. 

13.  That  the  length  of  the  centre  line  of  the  Mono  claim 
west  of  the  discovery  hole  is  800  feet. 

14.  That  the  bearing  of  this  line  is  1ST.  83°  30'  W. 

15.  That  the   southwest   end  of  the    Magnolia   West, 


21 

being  at  right  angles  with  its  centre  line,  bears  K.  45°  W. 

16.  That  the  northeast  end  of  the  Magnolia  East,  being 
parallel  with  the  last-mentioned  line,  bears  S.  45°  E. 

These  things,  which  the  register  and  receiver  failed  to 
see,  should  not  be  overlooked  by  the  Commissioner.  They 
are  precisely  the  things  which — taken  in  connection  with 
the  averments  of  the  adverse  claim,  that  the  Magnolia  claim 
is  200  and  the  Mono'100  feet  in  width — render  the  desig- 
nations of  the  adverse  claim  not  merely  sufficient,  but  so 
absolutely  complete  as  to  lack  nothing  essential  to  the 
most  accurate  and  perfect  survey  that  can  in  any  case 
possibly  be  made. 

In  further  particularization  the  register  and  receiver 
say  that  "  they  find  no  field-notes"  on  the  plat.  In  this, 
too,  they  are  mistaken.  The  foregoing  sixteen  items  are 
all  virtually  field-notes,  and  nothing  else.  It  is  true  that 
they  are  not  written  down  one  under  another,  in  .column, 
but  are  written  along  the  lines  of  which  they  designate  the 
lengths  and  bearings.  But  such  a  quibble  sticks  in  the 
very  outer  bark.  It  sacrifices  the  substance  to  a  thin 
shadow  of  technicality.  It  would  be  as  proper  to  say  that 
a  promissory  note  is  not  a  promissory  note,  because  the 
signature  is  placed,  not  as  usual,  at  the  lower  right-hand 
corner,  but  at  the  lower  left  hand  corner.  But,  then,  it  is 
wholly  immaterial  whether  they  are  technical  "  field-notes  " 
or  not.  They  show  the  bearings  and  distance?.  And  if 
that  is  done,  it  is  immaterial  whether  it  is  done  by  "  field- 
notes,"  technically  so  called,  or  by  some  other  means. 

Equally  erroneous  is  the  assertion  that  there  arc  "  no 
monuments  to  designate  the  points  in  conflict."  Mineral 
Monument  No.  6  is  given,  with  its  relations  to  all  the  im- 
portant points  of  the  Magnolia  and  Mono  claims,  by  means 
whereof  the  points  of  intersection  are  designated  with 
mathematical  precision.  It  is  true  that  there  are  no  pictures 
of  "  monuments  "  or  of  u  stakes"  on  the  plat.  It  is  equally 
true  that  there  ought  to  be  none.  The  points  are  given. 
Anything  beyond  would  be  supererogatory,  not  to  say 
puerile.  There  is  nothing  in  the  statement  that  there 


22 

are  on  the  plat  no  "  colors  to  designate  the  points  in  con- 
flict." It  is  possible  that  a  small  boy  might  not  perceive 
the  overlap  of  two  intersecting  linear  parallelograms,  un- 
less the  overlap  should  be  painted,  but  lie  would  be  a  very 
small  boy  indeed.  Arid  if  these  land  officers  mean  that 
colors  would  be  of  material  aid  to  their  comprehension  of 
the  overlap  of  the  Magnolia  and  Mono  claims,  I  hardly 
know  wThat  to  say  that  would  not  assail  either  their  intelli- 
gence or  their  candor. 

Not  less  erroneous  is  the  next  statement  of  the  land 
officers,  which  is  in  these  words : 

"  And  upon  a  careful  examination  of  the  allegations  in 
the  adverse  claim,  we  find  that  confusion  becomes  worse 
confounded." 

In  the  first  place,  there  was  no  confusion  to  "confound." 
The  plat  is  neither  obscure  nor  ambiguous.  It  furnishes 
the  data,  and  all  the  necessary  data,  for  as  perfect  an  un- 
derstanding and  description  of  this  interference  as  could, 
in  any  case,  possibly  be  attained — a  description  as  full  and 
complete  as  the  most  punctilious  conveyancer  could  even 
suggest  for  a  deed  of  the  property.  But,  in  the  next  place, 
the  allegations  not  only  do  not  aggravate,  but  they  do  not 
originate  confusion.  That  which  is  clear  without  the  alle- 
gations is  left  clear  by  the  allegations.  It  is  only  the  mis- 
conception or  misconstruction  of  the  land  officers  that  tends 
to  make  confusion. 

Still  further  the  land  officers  say : 

"  We  find  all  the  allegations  to  this  matter  to  this  effect: 
that  the  application  for  a  patent  for  the  Mono  mine  laps 
over  and  cuts  off  about  1,000  feet  in  length  of  said  lode, 
the  property  of  these  adverse  claimants,  &c. ;  and  refers  to 
the  plat  on  file.  In  referring  to  the  location  notice  of  the 
Magnolia  East  they  claim  only  1,000  feet  in  length,  while 
on  the  plat  so  filed  there  is  not  as  much  as  one  fourth  of 
the  one  thousand  feet  of  the  said  Magnolia  claim  that  is 
embraced  inside  of  the  lines  drawn  on  said  plat  and  marked 
1  Mono'  mine." 

Now  what  these  officers  evidently  mean  is  to  state  four 
propositions  of  fact,  as  embraced  in  the  adverse  claim, 


23 

which  shall  appear  to  be  inconsistent  with  each  other,  viz : 

1.  That  the  adverse  claimants  allege  that  the  Mono  claim 
overlaps  about  1,000  feet  in  length  of  the  Magnolia  claim. 

2.  That  they  allege  that  the  Mono  claim  cuts  off  about 
1,000  feet  in  length  of  the  Magnolia  claim. 

3.  That  the  Magnolia  East  is,  altogether,  only  1,000  feet 
in  length. 

4.  That  the  plat  shows  that  the  overlap  embraces  in  its 
limits  less  than  one-fourth  of  the  Magnolia  East. 

The  inconsistency  which  the  land  officers  find  here  seems 
to  be  that  in  the  allegation  of  the  adverse  claim  the  over- 
lap is  made  to  embrace  nearly  the  whole  of  the  1,000  feet 
of  the  Magnolia  East,  but  in  the  plat  it  is  shown  to  em- 
brace less  than  one-fourth  part.  But  this  confusion  is  in 
the  minds,  or,  to  be  more  accurate,  perhaps,  in  the  words 
of  the  land  officers  themselves. 

The  allegation  of  the  adverse  claimants  on  this  point  has 
already  been  cited  for  another  purpose.  It  is  in  the  fol- 
lowing words : 

"Said  Mono  Mining  Claim,  as  shown  by  the  notice  and 
diagram  posted  on  said  claim,  and  the  copy  thereof  filed 
in  the  United  States  land  office,  Salt  Lake,  with  said  appli- 
cation for  a  patent,  laps  over  upon,  and  cuts  oft'  about  one 
thousand  feet  in  length  of,  the  said  lodes  and  property  of 
these  adverse  claimants,  as  fully  appears  by  the  diagram 
and  map  hereto  attached,  marked  exhibit  "  F,"  of  the 
relative  locations  of  the  said  Magnolia  West  and  Magnolia 
East,  and  the  Mono  Mining  Claim." 

"What  the  adverse  claimants  mean  and  say,  so  far  as  the 
overlap  is  concerned,  is  that  the  Mono  laps  over  upon  the 
Magnolia.  They  also  say  that  the  Mono  cuts  off  about  1,000 
feet  of  the  Magnolia.  They  do  not  mean  to  say  that  the 
Mono  laps  "over  upon  about  1,000  feet  in  length"  of  the 
Magnolia,  and  "  cuts  off  about  1,000  feet  in  length"  of  the 
Magnolia,  but  what  they  do  mean  is  precisely  what  they  say, 
that  the  former  "  laps  over  upon,  and  cuts  off  about  1,000 
feet  in  length  of,  the  said  lodes,"  &c.  The  land  officers, 
by  their  manipulation  of  prepositions  and  commas,  give  to 
words  a  meaning  which  the  context  and  the  plat  show  to 


24 

be  a  perversion.  They  sweep  away  a  title  to  a  valuable 
mine  by  a  discovery  of  the  wrong  objective  case  for  the 
preposition  "upon,"  making  the  allegation  to  be  that  the 
Mono  laps  over,  not  "  upon  the  said  lodes,"  but  "  upon 
about  1,000  feet  in  length  "  of  them.  If  anything  were 
needed  beside  the  context  of  the  averment  to  show  the 
error  of  this  construction,  it  would  be  found  in  the  plat 
itself,  to  which,  in  this  very  allegation,  the  adverse  claimants 
refer  as  indicative  of  the  nature  of  the  overlap.  That 
plat  shows  that  two  parallelograms,  one  200  feet  and  the 
other  100  feet  in  width,  and  one  only  1,000  feet  in  length, 
intersect  each  other  at  an  angle  of  23°  30'.  The  idea  that 
it  was  meant  that,  under  those  conditions,  one  overlapped 
the  other  throughout  its  whole  extent,  is  of  course  absurd. 

But  if  the  land  officers  conceive  that  when  the  adverse 
claimants  allege  that  the  Mono  claim  "cuts  off  about  1,000 
feet  in  length"  of  the  Magnolia  claim,  they  mean  that  the 
former  overlaps  the  latter  about  1,000  feet  in  length,  they 
obviously  attribute  a  new  sense  to  the  words  "cuts  off."  If 
a  parallelogram  is  "cut  off"  by  a  mere  line,  the  overlap  is 
nothing.  If  it  is  cut  off  by  another  parallelogram,  the  ex- 
tent of  the  overlap  will  depend  on  the  width  of  the  bisect- 
ing parallelogram.  But  the  number  of  feet  in  length  cut 
off  will  depend  on  the  point  of  section.  In  this  case  the 
length  cut  off  was  about  1,000  feet.  It  was  exactly  805  T6g-  feet. 
For  that  is  the  exact  distance  from  B  to  H  on  the  plat. 
There  is,  then,  no  inconsistency  between  the  location  no- 
tice, the  plat,  and  the  averment,  on  this  point.  Taken 
together,  they  clearly  exhibit  the  nature  and  extent  of  the 
alleged  conflict  between  the  two  claims. 

It  is  not  incumbent  on  the  adverse  claimant  to  state  his 
claim  with  as  much  precision  or  particularity  as  is  required 
of  the  applicant  for  a  patent.  When  the  application  is  first 
made,  there  is  no  presumption  that  there  will  be  any  con- 
test, and  therefore  the  statement  must,  on  its  face,  show 
that  the  applicant  has  complied  with  the  law ;  and  such  a 
description  "as  shall  identify  the  claim  and  furnish  an 
accurate  description,  to  be  incorporated  in  the  patent, 


25 

must  be  filed."  (Sec.  6.)  When  the  adverse  claim  is 
filed,  the  question  whether  the  law  has  or  has  not  been 
complied  with  is  to  be  determined  by  the  courts,  and  there 
is  not  the  same  necessity  for  showing  the  details  of  such 
compliance  in  the  adverse  claim  itself.  And  the  statute 
expressly  provides  that  the  party  may  afterwards,  if  he 
succeeds,  file  the  "description  required  in  other  cases." 
(Sec.  7.) 

The  adverse  claim  is  not  intended  as  the  foundation  of 
the  patent.  But  with  the  successful  adverse  claimant  the 
judgment  roll  takes  the  place  of  the  application,  excepting 
in  so  far  as  the  7th  section  provides  for  filing  other  docu- 
ments with  the  judgment  roll. 

The  Commissioner  will  not  seek  in  technicalities  an  ex- 
cuse for  withdrawing  the  merits  of  the  case  from  the  courts, 
but  will  rather  incline  to  the  adoption  of  a  rule  of  construc- 
tion that  will  secure  to  the  parties  a  fair  adjudication  of 
their  rights. 

If  it  should  be  decided  that  the  adverse  claim,  is  im- 
perfect, the  adverse  claimants  would  ask  that  the  case  be 
remanded  to  the  register  at  Salt  Lake,  with  instructions 
for  the  allowance  of  a  reasonable  time  for  amendment. 

It  would  not  be  consistent  with  the  policy  of  the  Gov- 
ernment, nor  with  reason  or  justice,  to  hold  parties  in  the 
land  office  to  a  practice  so  strict  as  to  exclude  amendments 
in  cases  of  this  kind.  If  the  register  had  not  accepted  the 
adverse  claim  as  sufficient  when  first  filed,  it  could  have 
been  amended,  or  a  new  claim  filed,  within  the  time  al- 
lowed by  law.  It  would  be  gross  injustice  to  make  a  ruling 
in  favor  of  the  adverse  claimants  before  the  time  for  filing 
an  adverse  claim  had  expired,  and  then  reverse  the  ruling 
after  the  time  had  expired,  and  still  cut  off  all  possibility 
of  amendment.  The  adverse  claimants  ought  to  have  had 
notice  of  the  action  of  the  register  and  receiver  at  the  time 
they  made  their  ruling  of  the  22d  of  :viay  last,  and  to  have 
been  permitted  to  amend  at  that  time,  if  they  had  desired 
to  do  so. 

And  if  it  were  possible  for  an  objection  to  be  taken,  at 
4 


26 

this  late  day,  to  the  form  of  the  adverse  claim,  the  same 
right  of  amendment  would  still  exist.  It  has  neither  been 
barred  nor  waived,  and  it  cannot  be  filched  away  by  any 
such  ex  parts  action  as  was  had  on  the  22d  of  May,  1874. 

Courts  always  permit  pleadings  to  be  amended  in  analo- 
gous cases;  and  with  most  liberality  where  the  parties 
would  otherwise  be  barred  by  the  statute  of  limitation. 
Certainly  the  practice  in  this  department  should  be  sur- 
rounded with  as  few  technicalities  as  possible,  and  not 
made  so  rigorous  and  strict  as  to  require  the  sacrifice  of 
rights  to  property  of  great  value  to  mere  mistakes  in 
pleading. 

The  second  reason  assigned  for  the  dismissal  of  the  ad- 
verse claim  is  this  : 

"  We  also  find  that  there  is  no  allegation  in  the  said  ad- 
verse claim  that  any  part  of  the  vein  or  lode  discovered  on 
the  Magnolia  claim  extends  and  runs  under  the  ground  of 
the  application  of  the  Mono,  nor  do  they  allege  that  the 
Mono  mines  discovery,  vein,  or  lode  is  the  same  vein  or 
lode  of  silver-bearing  rock  as  that  of  the  Magnolia/' 

The  meaning  of  this  is  that,  under  the  last  clause  of  sec- 
tion 3  of  the  act  of  July  26,  1866,  it  is  necessary  that  the 
adverse  claim  should  contain  an  averment  that  the* Mono 
discovery  and  the  Magnolia  discovery  are  on  the  same  vein 
or  lode,  and  that  it  does  not  contain  such  an  averment. 
On  both  points  the  applicants  are  mistaken.  The  adverse 
claim  is  not  required  to  contain  such  allegation.  But  it 
does  contain  it. 

The  clause  referred  to  is  in  these  words : 

"But  said  plat,  survey,  or  description  shall  in  no  case 
contain  more  than  one  vein  or  lode,  and  no  patent  shall 
issue  for  more  than  one  vein  or  lode,  which  shall  be  ex- 
pressed in  the  patent  issued." 

The  "  plat,  survey,  and  description  "  are  those  embraced 
in  the  application  for  a  patent.  The  whole  section  applies, 
not  to  adverse  claims,  but  to  the  issue  of  patents  in  the  ab- 
sence of  adverse  claims.  And  the  statute  does  not  even 
require  that  the  application  for  the  patent  shall  contain  a  spe- 


27 

cific  allegation  that  all  the  metaliferous  portions  of  the  claim 
belong  to  the  discovery  lode.  Nor  does  the  application  of 
the  Mono  claimants,  in  the  present  case,  contain  any  such 
specific  allegation.  Still  less  does  the  statute  require,  either 
expressly  or  by  implication,  that  an  adverse  claim  shall  con- 
tain-such  a  specific  allegation.  On  this  point,  in  the  case 
now  under  consideration,  the  allegations  of  the  applica- 
tion for  a  patent  and  of  the  adverse  claim  are  alike.  In 
neither  is  it  specifically  alleged,  but  in  each  it  is  substan- 
tially indicated,  that  the  whole  of  the  claim  belongs  to 
the  discovery  lode.  But,  as  a  matter  of  fact,  the  identity 
of  the  Mono  and  Magnolia  is  shown  not  only  by  the  gen- 
eral scope  and  effect  of  the  adverse  claim  and  plat,  but  also 
by  express  averment  in  the  following,  among  other  pas- 
sages: 

'-Siiid  Mono  mining  claim,  as  shown  by  the  notice  and 
diagram  posted  in  said  claim,  and  the  copy  thereof  filed  in 
the  United  States  land  office,  Salt  Lake,  with  said  applica- 
tion for  a  patent,  laps  over  upon  and  cuts  off  about  one 
thousand  feet  in  length  of  the  said  lodes  and  property  of 
these  adverse  claimants,  as  fully  appears  in  the  diagram 
and  map  hereto  attached,  marked  Exhibit  "F,"  of  the  rela- 
tive locations  of  the  said  Magnolia  West  and  the  Magnolia 
East  and  the  Mono  mining  claim." 

With  this  argument  I  present  the  affidavits  of  Edwin 
Gilrnan,  superintendent  of  the  Magnolia  mine,  and  T.  H. 
Robison,  a  practical  miner,  showing  that  the  Mono  shaft, 
or  incline,  is  in  the  Magnolia  lode. 

It  is  to  be  remembered  that  W.  E.  Miller,  one  of  the 
applicants  for  a  patent  who  make  affidavit  to  the  applica- 
tion in  this  case,  attempted  his  relocation  on  the  12th  of 
August,  1872.  He  alleged  in  his  location  notice,  as  has 
already  been  shown,  that  u  the  locators  of  the  said  Mono 
lode,  vein,  or  deposit,  are  not  entitled  to  a  discovery  claim 
therein,  the  same  lode,  vein,  or  deposit  having  been  previ- 
ously discovered,  located,  and  recorded  under  another 
name."  This  is  proof,  so  far  as  it  goes,  that  there  is  no 
"  Mono  "  lorle  ;  that  the  Mono  applicants  are  either  on  the 
Magnolia  lode  or  8boo-Fly  lode,  or  on  the  intersection  of 


28 

those  two  lodes.  Very  prudently,  Mr.  Miller  withheld  the 
"other  name"  of  the  lode,  so  that  it  may  be  "  Magnolia'7 
or  "  Shoo-Fly,"  as  the  exigencies  of  the  case  may  require. 

This  averment  of  identity  is  wholly  immaterial  to  the  pres- 
ent case,  in  which  the  Mono  discovery  lies  within  the  lines  of 
the  Magnolia  claim.  If  such  an  averment  could  be  material 
to  an  adverse  claim  in  any  case,  it  would  be  in  a  case  where 
the  surface  areas  of  the  conflicting  claims  should  not  overlap, 
but  the  adverse  claimant  should  seek  to  fix  his  own  rights 
to  follow  his  lode  under  the  claimants7  land.  But,  even  in 
that  case,  the  materiality  of  the  averment  would  be  very 
doubtful,  to  say  the  least.  For  by  section  2  of  the  act  of 
July  26,  1866,  under  which  the  Magnolia  claimants  ac- 
quired their  rights,  it  is  provided  that  the  claimant  who 
has  complied  with  the  condition  prescribed  shall  be  en- 
titled "  to  enter  such  tract  and  receive  a  patent  therefor, 
granting  such  mine,  together  with  the  right  to  follow  such 
vein  or  lode,  with  its  dips,  angles,  and  variations,  to  any 
depth,  although  it  may  enter  the  land  adjoining,  which 
land  adjoining  shall  be  sold  subject  to  this  condition." 
This  provision  renders  it  unnecessary  for  one  of  two  con- 
tiguous claimants  to  have  the  question  of  his  rights  in  his 
neighbor's  land  adjusted,  though  an  adverse  claim,  when- 
ever his  neighbor  sees  fit  to  apply  for  a  patent.  His  right 
under  the  statute  is  a  right,  not  to  take  a  patent  of  his 
neighbor's  land,  but  to  follow  his  lode  or  vein  into  his- 
neighbor's  land;  and  his  neighbor  takes  his  patent  subject  to 
this  right.  He  is  not  compelled  to  follow  his  vein  or  lode  to 
its  end  in  a  month,  or  a  year,  or  five  years.  Whenever,  in 
the  legal  prosecution  of  his  work,  he  reaches  that  point  in 
his  lode  where  it  crosses  the  boundary  of  his  neighbor's 
land,  if  his  is  the  prior  claim,  he  is  entitled  to  follow  it 
downward  across  the  line,  whether  this  occurs  in  a  day,  or 
a  year,  or  ten  years,  before  or  after  his  neighbor's  patent 
issues. 

The  land  office  is  not  competent  to  put  the  patent  in 
such  a  form  as  to  impair  in  the  slightest  degree  this  right. 
Inasmuch,  therefore,  as  this  right  is  wholly  independent, 


29 

as  well  of  the  form  of  the  patent,  as  also  of  the  question 
whether  a  patent  for  adjoining  land  is  or  is  not  issued,  not 
only  is  the  averment  of  such  a  right  in  an  adverse  claim 
unnecessary,  but  the  adverse  claim  itself  is  wholly  unne- 
cessary for  the  vindication  of  such  a  right.  But  however 
this  might  be  in  a  case  where  the  surface  areas  of  claims 
did  not  overlap  each  other,  one  proprietor  merely  claiming 
a  right  to  follow  his  vein  or  lode  under  his  neighbor's  claim, 
in  the  case  now  under  consideration  there  is  not  a  shadow 
of  a  pretext  for  the  requirement  of  such  an  allegation  in 
the  adverse  claim  in  this  case.  The  ground  in  dispute  is 
not  contiguous  ground,  but  an  overlap.  And  not  only  is  it 
an  overlap,  but  the  very  discovery  hole  itself  of  the  Mono 
is  claimed  to  fall  within  this  overlap.  The  Magnolia 
claimants  do  not  seek  to  follow  their  vein  or  lode  into  a 
neighbor's  ground  under  section  2  of  the  act  of  July  26, 
1866.  They  claim  that  this  ground  itself  is  their  own. 
They  would  not  deem  it  necessary  to  take  any  notice  of 
this  case  in  the  land  department  merely  for  the  purpose 
of  following  their  own  lode  into  that  part  of  the  Mono 
claim  which  does  not  lie  within  the  limits  of  the  Magnolia 
claim.  If  their  complaint  were  merely  that  the  Mono 
claimants  were  taking  ore  from  the  Magnolia  vein  or  lode 
at  points  within  the  Mono  claim,  but  not  within  the 
Magnolia  claim,  the  remedy  would  be  sought  not  in  the 
land  office,  but  in  the  courts,  if  anywhere.  But  the  com- 
plaint is  that  the  Mono  claimants  have  not  only  laid  a  part 
of  their  claim  within  the  superficial  limits  of  the  Magnolia 
claim,  but  have  actually  made  their  discovery  within  those 
limits,  and  are  taking  out  ore  therefrom. 

The  third  objection  of  the  register  and  receiver  to  the 
formal  sufficiency  of  the  adverse  claim  ie,  that  there  is  a 
variance  between  the  location  notice  and  the  survey  in  the 
bearing  of  the  claim;  that  in  the  notice  the  direction  is 
shown  to  be  easterly,  in  the  survey  southeasterly.  The 
following  is  their  language  on  this  point: 

"And  on  examination  of  the  location  notice  of  the  Mag- 


30 

nolia  East,  that  it  calls  for  1,000  feet  running  in  an  easterly 
direction,. while  the  survey  for  the  adverse  claim  runs  in  a 
southeasterly  direction.  It  might  be  allowable  for  a  survey 
to  deviate  a  few  degrees  from  the  direction  of  the  location, 
but  in  all  such  cases  it  should  be  alleged  and  shown  that 
the  deviation  was  made  for  the  purpose  of  following  the 
vein  or  lode  so  discovered,  and  on  which  the  claim  was  so 
located." 

The  rule  laid  down  seems  to  be,  that  while  a  small  vari- 
ance between  the  notice  of  location  and  survey  is  admissi- 
ble, yet,  in  order  to  obviate  objection  to  such  variance,  it 
must  be  specifically  alleged  in  the  adverse  claim  that  the 
deviation  was  made  for  the  purpose  of  following  the  vein 
or  lode.  But,  in  the  first  place,  it  will  be  seen  that  this 
rule  is  laid  down  only  for  one  of  the  parties  to  this  contro- 
versy; that  the  other  is  exempted  from  its  operation. 

For  while  it  is  true  that  in  the  Magnolia  location  notice 
the  bearing  of  the  k' Magnolia  East"  is  stated  as  "easterly," 
and  on  the  plat  it  is  shown  to  be  N.  73°  E.,  which  is  a 
little  north  of  east,  not  southeast,  as  stated  by  the  land 
officers,  it  is  also  true  that  in  the  Mono  location  notice  the 
bearing  is  stated  to  be  "easterly,"  and  in  the  survey  it  is 
shown  to  be  S.  83°  30'  E.  And  while  there  is  in  the  ad- 
verse claim  of  the  Magnolia  no  formal  specific  allegation 
that  this  "deviation  was  made  for  the  purpose  of  following 
the  vein  or  lode,"  so  also  is  there  no  such  specific  allega- 
tion in  the  Mono  application  for  a  patent.  And  yet  the  land 
officers  make  haste  to  pronounce  that  application  perfect. 

If  this  is  a  sound  rule  for  the  Magnolia  adverse  claim,  it 
applies,  a  fortiori,  to  the  Mono  application  for  a  patent; 
because  obviously  greater  precision  is  necessary  in  an  ap- 
plication, which,  in  the  absence  of  opposition,  is  a  basis 
for  a  patent,  than  in  an  adverse  claim,  which  is  not  a  basis 
for  any  title,  but  merely  a  ground  for  asking  a  reference  of 
the  contest  for  title  to  the  tribunal  indicated  by  law  for  its 
decision.  If  this  rule,  then,  applies  to  the  Magnolia  claim, 
it  also  applies  to  and  absolutely  defeats  the  application  for 
a  patent. 

But  the  rule  is  not  sound  in  its  application  to  the  adverse 


31 

claim  of  the  Magnplia  claimant.  It  is  no  part  of  the  duty 
of  the  register  and  receiver  to  try  the  merits  of  the  con- 
troversy between  the  applicant  for  a  patent  and  the  adverse 
claimant;  that  is  precisely  what  is  submitted  by  the  statute 
to  the  courts..  All  the  register  and  receiver  have  to  do 
when  an  adverse  claim  is  made,  is  to  stand  still  until  the 
courts  decide.  They  must,  of  course,  determine  whether 
that  which  is  presented  as  an  adverse  chiirn  is  in  form  an 
adverse  claim.  With  that  determination  their  power  and 
duty  end.  Now,  in  the  first  place,  it  is  not  even  necessary 
that  the  adverse  claim  should  embrace  the  location  notice, 
or  a  statement  of  its  contents,  or  a  full  copy  of  the  survey. 
Neither  the  statutes  nor  the  regulations  require  any  such 
formality;  and  what  the  full  survej?  of  the  Magnolia  claim 
shows  or  fails  to  show  on  this  point  was  not  known  to  and 
did  not  concern  the  land  officers.  In  the  next  place,  if 
the  location  notice  shows  a  bearing  to  be  easterly,  and 
the  actual  survey  makes  it  IS".  73°  E.,  a  little  northeasterly, 
the  question  whether  the  direction  IS".  73°  E.  conforms  to 
the  direction  of  the  lode  or  not,  if  material,  is  for  the  court, 
which  adjudicates  the  case,  and  not  for  the  land  officers, 
who  await  such  adjudication,  to  decide.  The  question  for 
the  land  officers  is  whether  the  adverse  claimants  give  the 
bearing  of  their  claim,  not  whether  that  bearing  is  correct. 
This  hitter  question  is  for  the  courts.  But,  in  the  third 
place,  the  question  for  the  land  officers,  whatever  it  was, 
was  decided  by  the  former  register  in  1872,  and  it  is  in- 
competent tor  the  present  officers  to  reverse  or  open  that 
decision. 

The  fourth  and  last  objection  stated  by  the  land  officers 
is  in  the  following  words: 

u  We  also  find  that  there  are  no  proofs  of  title  .on  file 
showing  that  the  said  Lafayette  Granger  and  Farley  13. 
Granger  are  the  owners  of  said  Magnolia  claim." 

This  supposes  that  it  is  the  function  of  those  officers  to  de- 
cide whether  Lafayette  Granger  and  Farley  B.  Granger  are 
owners  of  the  Magnolia  claim;  for  if  they  are  not  to  decide 


32 

this  question,  they  want  no  proofs  on  the  point.  But  this  is 
of  course  one  of  the  main  questions  for  the  court  to  decide. 
The  statute  only  requires  the  Grangers  to  claim  the  owner- 
ship before  these  land  officers.  They  are  to  prove  it  in  the 
courts.  And  they  do  so  claim  it.  The  statute  requires  that 
the  "adverse  claim  shall  show  the  nature,  boundaries,  and 
extent  of  such  adverse  claim."  It  nowhere  expresses  or  im- 
plies a  requirement  that  it  shall  prove  the  allegations  on 
the  subject.  Any  so-called  "  regulation  "  by  the  land  office, 
requiring  proof,  would  not  be  regulation,  but  legislation; 
and  it  would  not  only  be  attempted  legislation  by  an  officer 
who  does  not  possess  legislative  power,  but  it  would  be 
attempted  legislation  hostile  to  that  of  Congress,  which 
does  possess  legislative  power;  for  the  law  of  Congress 
refers  to  the  courts  this  proof,  of  which  such  a  regulation 
would  give  the  local  land  officers  jurisdiction.  While  reg- 
ulation under  and  in  conformity  with  the  law  is  proper  and 
necessary,  regulation  which  amounts  to  substantive  legis- 
lation is  not  to  be  tolerated,  even  though  it  do  not  trench 
upon  any  provision  of  the  statute.  Still  more  objectionable 
is  such  regulation  as  is  not  only  in  itself  legislation,  but  is 
also  in  conflict  with  actual  provisions  of  the  statute. 

Considered  in  the  light  of  these  evident  principles  of 
law,  section  48  of  the  mineral  regulations  of  June  10, 1872, 
cannot  be  said  to  require  that  the  Grangers  should,  in  their 
adverse  claim,  prove  to  the  land  officers  that  they  are  the 
owners  of  the  claim.  If  there  were  any  such  requirement 
in  these  regulations,  it  would  be  void.  This  is  the  section: 

U48.  The  adverse  notice  must  be  duly  sworn  to  before 
an  officer  authorized  to  administer  oaths  within  the  land 
district,  or  before  the  register  or  receiver.  It  will  fully 
set  forth  the  nature  and  extent  of  the  interference  or  con- 
flict; whether  the  adverse  party  claims  as  a  purchaser  for 
valuable  consideration  or  as  a  locator.  If  the  former,  the 
original  conveyance,  or  a  duly  certified  copy  thereof, 
should  be  furnished;  or  if  the  transaction  was  a  mere 
verbal  one,  he  will  narrate  the  circumstances  attending  the 
purchase,  the  date  thereof,  and  the  amount  paid,  which 
facts  should  be  supported  by  the  affidavit  of  one  or  more 


33 

witnesses,  if  any  were  present  at  the  time ;  and  if  he  claims 
as  locator,  he  must  file  a  duly  certified  copy  of  the  location 
from  the  office  of  the  proper  recorder." 

As  has  been  shown,  the  statute  only  requires  that  the 
adverse  claim  "shall  show  the  nature,  boundaries  and  ex- 
tent of  such  adverse  claim.'"  The  distinction  between  the 
nature  of  a  claim  or  estate  and  the  proofs  of  title  thereto 
is  so  broad  and  palpable  that  it  can  neither  be  overlooked 
nor  removed.  The  question  whether  an  estate  claimed  in 
lands  is  in  its  nature  in  fee  simple,  for  life,  for  years,  by 
tenancy  at  will,  or  by  courtesy,  or  of  some  other  nature,  is 
one  question.  The  question  whether  that  title  can  be  es- 
tablished by  proof  is  quite  another  question.  No  man 
could  fail  to  distinguish  between  the  nature  of  the  estate  and 
the  instruments  or  modes  of  proof  of  the  estate.  So  also  the 
question  whether  a  mining  claim  is  a  placer  claim,  or  a 
lode  claim,  or  a  tunnel  right,  or  a  water  privilege,  or  by 
location  or  purchase,  or  of  some  other  nature,  is  widely 
different  from  the  question  whether  the  proofs  sustain  the 
claim.  The  claim  is  one  thing;  the  proof  is  another. 
The  commissioner,  therefore,  is  careful  to  say,  "If  the 
former,  the  original  conveyance,  or  a  duly  certified  copy 
thereof,  should  (not  must)  be  furnished."  This  is  directory 
only.  If  it  is  anything  more,  it  is  invalid.  If  it  requires 
the  adverse  claimant  to  present  his  proofs  to  the  land 
officers,  it  is  attempted  legislation,  and  it  is  at  the  same 
time  in  direct  conflict  with  that  valid  legislation  of  Con- 
gress which  gives  jurisdiction  of  these  proofs  to  the  courts. 
In  like  manner,  when  the  commissioner  says  that  the  facts 
connected  with  a  verbal  agreement  to  convey  "should  be 
supported  by  the  affidavit  of  one  or  more  witnesses,  if  any 
were  present  at  the  time,"  he  proposes  a  regulation  which 
is  merely  directory,  which  could  not  be  mandatory  without 
amounting  not  only  to  attempted  legislation,  but  to  at- 
tempted legislation  directly  conflicting  with  the  valid  leg- 
islation of  Congress,  which  remits  to  the  courts  the  power 
to  hear  proofs  upon  and  decide  the  question  of  title. 
5 


34 

Now  let  us  see  what  the  adverse  claimants  do  allege  on 
this  subject : 

1.  They  show  that  their  claim  is  a  lode  claim.     But  they 
go  further  than  that. 

2.  They  show  that  the  Magnolia  East  was  located  June 
18, 1870,  by  John  Houtz,  Benjamin  P.  Brown,  A.  M.  Paul, 
and  W.  L.  Dykes  ;  and  that  the  Magnolia  West  was  located 
June  18,  1870,  by  Isaac  Neibauer,  Ben  Argyle,  Jacob  Orn- 
stein,  and  J.  L.  Tibbits. 

3.  They  allege  the  following  conveyances: 
Benjamin  Argyle  and  Isaac  Neibaur  to  Jacob  Ornstein, 

January  9, 1872;  James  Tibbitts  to  Jacob  Ornstein,  Janu- 
ary 22,  1872;  Isaac  ISTeibaur,  James  Tibbitts,  Benjamin 
Argyle,  Adam  Paul,  W.  L.  Dykes,  John  L.  Houtz,  and 
Jacob  Ornstein  to  Lafayette  Granger,  February  6,  1872; 
Adam  M.  Paul  to  Lafayette  Granger,  February  14,  1872; 
Lafayette  Granger  to  Farley  B.  Granger,  subsequently,  of 
one  undivided  half.  By  a  clerical  mistake,  the  conveyance 
from  B.  P.  Brown  to  Lafa}7ette  Granger,  of  November  5, 
1872,  was  omitted.  The  adverse  claimants,  therefore,  not 
only  show  the  nature  of  their  claim,  but  they  also  show 
who  were  its  original  locators  and  grantors.  The  word 
conveyance  implies  writing 

They  did  not  present  certified  copies  of  the  deeds.  That 
they  could  not  be  required  to  do.  And  yet  they  intended 
to  do  that,  as  appears  from  the  language  of  their  adverse 
claim;  and  they  will  do  it  when  the  case  shall  be  remanded 
to  the  local  land  office,  where  it  belongs. 

But  neither  have  the  Mono  claimants  presented  any  such 
transcripts,  although  their  application  for  a  patent  is  not, 
like  the  adverse  claim  of  the  Magnolia  claimants,  a  mere 
protest,  made  to  secure  a  trial,  but  is,  in  the  absence  of  an 
adverse  claim,  the  entire  case,  allegations  and  proof  in- 
cluded, on  which  they  claimed  a  decision  awarding  a  pat- 
ent. On  the  contrary,  they  have  presented  only  abstracts, 
which  are  nowhere  legal  evidence,  which  nowhere  take  the 
place  of  certified  transcripts.  Mere  abstracts  cannot  be 
made  evidence  except  by  express  sta.tu.tory  provision.  And 


35 

it  would  be  a  dangerous  innovation  to  substitute  the  min- 
ing recorder's  opinion  of  the  scope  of  a  conveyance  for  a 
certified  transcript  of  the  instrument  itself.  Even  in  the 
case  now  under  consideration,  while  in  the  text  of  the  ap- 
plication for  the  patent  the  conveyances  are  alleged  to  have 
been  of  undivided  interests,  the  so-called  abstracts  are  am- 
biguous, and  do  not  show  whether  the  interests  conveyed 
were  several  or  undivided.  Whether  by  the  words  "  ab- 
stract of  title,"  in  the  32d  regulation,  it  was  really  meant 
to  embrace  certified  copies  of  the  deeds,  or  only  to  require 
the  officer's  statement  of  the  purport  and  effect,  it  is  not 
altogether  clear.  If  the  latter  is  the  meaning,  while  it  is 
of  course  proper  to  require  this  abstract,  yet  it  is  difficult 
to  see  upon  what  principle  it  can  be  used  as  conclusive  proof 
of  title  in  a  contested  case  like  this. 

V. 

I  now  proceed  to  a  consideration  of  the  seven  "rea- 
sons" on  which  the  Mono  applicants  predicate  their  novel 
motion  to  dismiss,  as  a  nullity,  the  adverse  claim  of  La 
Fayette  Granger  and  Farley  B.  Granger. 

The  first,  second,  and  fourth  objections  are  based  upon 
the  erroneous  view  that  the  local  land  officers  are  to  usurp 
the  functions  of  the  courts  which  are  authorized  by  law  to 
try  the  contest,  and  are  to  hear  and  adjudicate  upon  proofs 
of  title  themselves.  Enough  has  already  been  said  upon 
this  point. 

The  third  objection  also  has  already  been  considered. 

The  fifth  objection  seems  to  involve  four  branches,  more 
or  less  distinct:  1st,  that  no  proceedings  to  determine 
the  question  of  the  right  of  possession  of  the  property  in 
dispute  were  commenced  in  any  court,  by  the  adverse  claim- 
ants, within  thirty  days  after  the  filing  of  their  adverse 
claim;  2d,  that  the  allegation,  by  the  adverse  claimants, 
that  they  commenced  an  action  some  time  prior  to  the 
filing  of  the  adverse  claim,  is  not  sufficient  under  the  stat- 


36 

ute;  3d,  that  an  allegation  that  an  action  of  ejectment  has 
been  commenced,  is  insufficient  under  the  statute;  and 
4th,  that  the  proceedings  referred  to  by  the  statute  are 
proceedings  to  determine  the  right  of  possession,  as  dis- 
tinct from  the  fact  of  possession. 

Altogether  this  objection  presents  a  very  remarkable 
confusion  of  ideas.  In  the  second  and  third  branches  it 
supposes  that  the  statute  requires  an  adverse  claim,  when 
filed,  to  contain  an  allegation  that  judicial  proceedings 
were  commenced  after  it  vms  filed.  In  its  whole  scope  it 
ie  offered  as  the  fifth  reason  why  the  adve?se  claim  is  a 
nullity.  That  is  to  say,  a  pleading  is  supposed  to  be  a 
nullity  because  something  does  or  does  not  happen  after 
it  is  filed.  The  statute  does  indeed  provide  that  a  failure 
to  commence  an  action  within  thirty  days  shall  be  deemed 
a  waiver  of  the  adverse  claim,  but  of  course  it  does  not 
provide  that  such  failure  shall  establish  the  nullity  of  the 
adverse  claim.  This  objection  is  not  only  out  of  place,  as 
a  whole,  in  this  proceeding,  which  is  a  motion  to  set  aside 
the  adverse  claim,  as  a  nullity,  and  not  a  motion  to  enforce 
a  waiver  of  the  adverse  claim,  but  it  would  be  good  for 
nothing,  even  if  offered  at  the  proper  time  and  place.  It 
is  unsound  in  all  its  parts.  To  commence  with  the  first 
branch,  the  adverse  claimants  allege,  on  the  last  page  of 
their  adverse  claim,  that  they  commenced  an  action,  in 
ejectment,  against  the  Mono  applicants,  on  the  6th  of  De- 
cember, 1872,  which  was  nearly  a  month  after  the  appli- 
cation was  filed,  and  twelve  days  before  the  adverse 
claim  was  filed.  This  allegation  was  unnecessary,  but  it 
was  true.  And  if  a  motion  had  been  made  on  the  21st  of 
May,  1874,  to  enforce  a  waiver  of  the  adverse  claim,  on 
the  ground  that  the  necessary  proceedings  to  determine 
the  right  of  possession  had  not  boon  commenced,  and  the 
adverse  claimants  had  been  notified  of  that  motion,  as  they 
were  not  notified  of  tho  motion  now  ponding,  they  would 
have  presented  a  transcript  of  tho.  record,  which  is  now 
on  file  in  the  Commissioner's  office,  and  which  shows  that 
the  action  was  pending  at  its  date,  June  6,  1874.  The 


37 

commencement  of  this  action,  on  the  6th  of  December, 
was  filed,  was  a  substantial  compliance  with  the  statute, 
and  would  be  a  complete  defense  to  a  motion  to  enforce  a 
waiver  of  the  adverse  claim.  The  following  is  the  clause 
of  the  statute  relating  to  the  subject: 

"It  shall  be  the  duty  of  the  adverse  claimant,  within 
thirty  days  after  filing  his  claim,  to  commence  proceed- 
ings, in  a  court  of  competent  jurisdiction,  to  determine 
the  question  of  the  right  of  possession,  and  prosecute  the 
same  with  reasonable  diligence  to  final  judgment;  and  a 
failure  so  to  do  shall  be  a  waiver  of  his  adverse  claim." 

The  object  of  this  last  clause  is  unmistakeable.  It  is  to 
compel  the  adverse  claimant  either  to  commence  his  action 
promptly,  or  get  out  of  the  way  of  the  applicant  who  seeks 
a  patent.  It  is  not  against  excessive  promptness,  but 
against  excessive  delay,  that  the  provision  is  aimed.  Every 
purpose  within  the  contemplation  of  the  statute  is  just  as 
completely  subserved  by  the  commencement  of  the  action 
on  the  first  day  after  the  application  for  the  patent  is  filed 
as  by  a  commencement  of  the  action  on  the  first,  or  tenth, 
or  twentieth  day  after  the  adverse  claim  is  filed.  Indeed, 
the  sooner  the  action  is  commenced,  after  the  application 
is  made,  the  more  completely  is  the  object  of  the  law  ac- 
complished. The  purpose  of  the  clause  is  to  secure  the 
commencement  of  the  action  before  the  expiration  (not  after 
the  commencement)  of  thirty  days  from  the  filing  of  the 
adverse  claim.  And  its  meaning  is  that  if,  at  the  expira- 
tion of  thirty  days  from  the  filing  of  the  adverse  claim,  no 
proceedings  shall  have  been  commenced,  the  adverse  claim 
shall  be  waived. 

In  this  case  the  adverse  claimants,  with  a  promptness 
which  is  commendable  rather  than  reprehensible,  com- 
menced their  proceedings  within  less  than  a  month  after 
the  i.ling  of  the  application  for  the  patent,  and  a  few  days 
before  they  filed  their  own  adverse  claim. 

The  applicants,  in  the  second  branch  of  this  objection, 
not  only  mistake  the  requirements  of  the  statute  respecting 
the  presence  in  the  adverse  claim,  of  an  allegation  of  the 


38 

commencement  of  an  action,  but  also  overlook  the  allega- 
tion actually  contained  in  the  adverse  claim,  which  is,  not 
that  the  action  was  commenced  at  some  time  not  desig- 
nated, but  that  it  was  commenced  on  the  6th  of  December, 
1872. 

In  the  third  and  fourth  branches  it  is  claimed  that  the 
action  of  ejectment  does  not  satisfy  the  requirements  of 
section  7  of  the  act  of  May  10,  1872.  But  where  wa»s  it 
ascertained  that  "the  proceeding  or  action  contemplated 
by  the  act  of  Congress  is  one  to  try  and  determine  the  right 
of  possession  as  distinct  from  the  fact  of  possession?  "  Cer- 
tainly not  in  the  act  itself.  The  act  requires  that  the 
question  of  the  right  of  possession  shall  be  adjudicated,  but 
but  it  does  not,  either  expressly  or  by  implication,  forbid 
the  adjudication  of  the  question  of  the  fact  of  possession, 
or  of  an  other  facts  in  the  same  action.  All  it  requires  is 
that  the  proceeding,  whatever  else  it  may  or  may  not  em- 
brace, shall  embrace  a  determination  of  the  right  of  posses- 
sion. The  action  of  ejectment  answers  this  purpose  as  well 
as  any  other.  It  does  not  any  the  less  determine  the  ques- 
tion of  the  right  of  possession  between  the  parties,  because 
it  happens  also  to  determine  the  question  of  the  fact  of  the 
defendant's  possession.  It  includes  the  particular  question 
indicated  in  the  statute  as  a  part  of  the  whole.  Nor  is  any 
pretext  for  such  a  construction  of  the  statute  to  be  found 
outside  of  the  statute  itself.  Courts  adjudicate  questions 
of  right,  not  in  the  abstract,  but  in  the  concrete.  They  do 
not  decide  mere  theoretical  questions  not  connected  with 
real  facts.  A  mere  hostile  claim  of  two  parties  to  the  same 
property,  whether  realty  or  personalty,  is  incapable  of  litiga- 
tion. There  must  be  an  averment  of  some  practical  inva- 
sion or  threatened  invasion,  by  one,  of  the  right  of  the 
other,  to  constitute  a  case.  A  bill  or  declaration  of  John 
Doe  against  Richard  Roe,  alleging  merely  that  the  plaintiff 
is  entitled  to  the  possession  of  certain  property  claimed  by 
the  defendant,  will  be  worthless,  and  will  not  be  enter- 
tained. There  must  be  some  additional  averment  show- 
ing that  the  defendant  practically  interferes  with  that  right, 


39 

not  by  a  mere  opinion  entertained  that  he  himself  is  enti- 
tled to  the  possession,  but  by  some  practical  assertion  of 
that  opinion  hostile  to  the  rights  of  the  plaintiff. 

The  sixth  reason  for  pronouncing  the  adverse  claim  a 
nullity  is  that  the  declaration  in  ejectment  against  the  appli- 
cants needs  amendment.  On  the  same  principle  a  motion 
for  leave  to  become  a  party  complainant  to  a  bill  is  to  be 
adjudged  a  nullity  if  the  bill,  when  filed,  happens  to  need 
amendment.  If  this  attempt  to  subvert  the  control  of  the 
courts  over  the  amendment  of  pleadings,  through  the  action 
of  the  local  land  officers,  had  been  made  on  a  motion  to  en- 
force a  waiver  of  the  adverse  claim,  and  upon  due  notice 
to  all  parties,  it  would  not  have  merited  any  serious  con- 
sideration. But  in  the  present  case  it  is  altogether  frivo- 
lous. 

The  seventh  and  last  objection  was  substantially  pre- 
sented in  the  decision  of  the  register  and  receiver,  and  has 
been  already  considered.  The  Magnolia  and  Mono  claim- 
ants both  indicated  easterly  directions  for  their  claims  in 
their  notices  of  location.  If  the  former  tortured  theirs  on 
the  map  towards  the  Mono  claim  to  X.  73°  E.,  so  did  the 
latter  torture  theirs  on  the  map  towards  the  Magnolia 
claim  to  S.  83°  E.  The  difference  between  these  two  de- 
viations is  one  not  of  kind,  but  only  of  degree.  In  view  of 
all  the  circumstances  attending  this  novel  motion,  under 
which  the  Mono  applicants  "  now  claim  and  present  and 
urge  their  right"  to  a  patent,  their  suggestion  of  fraud  in 
this  matter,  on  the  part  of  the  Magnolia  claimants,  sounds 
too  much  like  "stop  thief"  to  be  either  graceful  or  whole- 
some. The  Magnolia  claimants  had  no  notice  of  the  motion . 
A  written  decision  was  ready  on  the  next  day  after  the 
motion  was  made.  It  is  difficult  to  understand  how  the 
register  and  receiver  could  have  deemed  it  proper  to  de- 
cide so  expeditiously  and  so  secretly,  a  case  of  such  magni- 
tude, of  which  they  had  not  jurisdiction  ;  and  still  more 
difficult  to  understand  how  they  could  have  decided  all  the 
grave  questions  involved,  and  reduced  their  decision  to 
writing,  in  one  day.  Nor  is  it  apparent  how  it  happens 


40 

that  the  original  motion  and  argument  and  the  decision 
are  in  the  same  handwriting.  To  a  stranger  these  circum- 
stances might  perhaps  suggest  a  doubt  whether  the  argu- 
ment and  decision  were  prepared  as  the  dates  of  filing  in- 
dicate, or  previously  and  simultaneously;  whether  the 
counsel  prepared  the  decision  or  the  judge  the  argument. 
So  far  as  the  register  and  receiver  are  concerned,  all  this 
is  doubtless  susceptible  of  satisfactory  explanation.  Bat 
as  to  the  Mono  claimants  themselves,  it  cannot  be  so  easily 
explained.  If  this  proceeding  has  been  inspired  on  their 
part  by  an  expectation,  which  seems  to  have  been  indulged 
in  some  quarters,  at  the  time  this  motion  was  made,  that  a 
new  era  was  about  to  be  inaugurated  in  Utah,  in  which  the 
provision  of  the  constitution  that  no  person  shall  be  deprived 
of  life,  liberty,  or  property  without  due  process  of  law,  was 
to  be  suspended,  and  adventurers  licensed  to  fatten  on  the 
plundered  and  confiscated  estates  of  the  people,  the  sooner 
the  illusion  is  dispelled  the  better  for  all  concerned.  From 
lawless  persecutions  the  citizens  of  Utah  will  certainly  be 
protected  by  the  legislative,  executive,  and  judicial  depart- 
ments of  the  Government,  and  by  the  American  people. 
With  whatever  faults  they  may  be  justly  or  unjustly 
charged,  their  rights  of  private  property  are  precisely  like 
the  rights  of  other  men.  H.  E.  PAINE, 

Counsel  for  Magnolia  Claimants. 


General  Land  Office,  Washington,  D.  C, 


MAGNOLIA  MINING  COMPANY  et  al. 


MONO  MINING  COMPANY. 


REPLY  TO  ARGUMENT  OF  COUNSEL  FOR  MONO  MINING  COMPANY. 


I. 

The  counsel  for  the  Mono  claimants  insist  that  the  pend- 
ing action  in  ejectment,  brought  by  the  Magnolia  claimants 
almost  a  month  after  the  application  for  a  patent  was  filed, 
and  twelve  days  before  the  filing  of  the  adverse  claim,  was 
not  sufficient  to  save  the  adverse  claim  from  a  waiver  under 
the  statute;  that  the  action  to  determine  the  right  of  pos^ 
session  must  be  commenced  after  the  adverse  claim  is  filed. 
Their  argument  ^on  this  point  is  epitomized  at  its  com- 
mencement in  the  following  words  :  "  This  position  is  not 
.•correct,  for  the  reason  that  the  law  not  only  absolutely  pre- 
scribes and  fixes  the  time  when  the  action  shall  be  com- 
menced in  the  courts,  but  makes  it  a  branch  and  part  of 
the  proceedings  instituted  by  the  application  for  a  patent, 
And  it  involves  the  identical  controversy  growing  out  of 
the  filing  of  an  adverse  claim  in  the  land  office." 

The  reasons  assigned  for  treating  the  pending  action  in 
ejectment  as  a  nullity,  so  far  as  it  affects  the  application  for 
a  patent,  are,  then  : 

1st.  That  "  the  law  absolutely  prescribes  and  fixes  the 
time  when  the  action  shall  be  commenced  in  the  courts."" 

2d.  That  the  law  makes  the  action  ua  branch  and  part  of 
the  proceedings  instituted  by  the  application  for  a  patent." 


3d.  That  the  action  "  involves  the  identical  controversy 
growing  out  of  the  filing  of  an  adverse  claim  in  the  land 
office." 

In  their  ingenious  amplification  and  elaboration  of  this 
argument,  the  able  counsel  lay  down  the  following  addi- 
tional and  subordinate  propositions,  several  of  which  are 
modified  restatements  of  others : 

(1)  That  it  is  evident,  both  from  the  "  nature  of  the  case'7 
and  "from  the  language  of  the  act,"  that  "  the  proceedings- 
in  court  are  merely  auxiliary  or  subsidiary  to,  and  not  in- 
dependent of,  the  proceedings  in  the  land  office;  and  are 
for  the  purpose  of  trying  the  issue  raised,  and  settling  or 
deciding  the  controversy  instituted  in  that  office  between 
an  applicant  and  an  adverse  claimant  by  the  filing  of  con- 
flicting claims  to  the  same  premises;"  (2)  that,  "prior  to 
the  filing  of  an  adverse  claim,  there  is  no  controversy  be- 
fore the  land  office  to  be  referred  or  transferred  to  the 
courts;"  (3)  that  "the  law  makes  the  filing  of  the  adverse 
claim  the  initiation  of  the  controversy  to  be  sett.ed  by  the 
courts;"  (4)  that  "the  commencement  of  a  suit,  or  a  hun- 
dred suits,"  "  not  connected  with  that  controversy,"  before 
the  filing  of  the  adverse  claim,  "can  have  no  bearing  or 
effect  upon  the  proceedings  before  the  land  office;"  (5)  that 
"  the  use  of  the  definite  article  (in  the  act)  confines  and 
limits  the  reference  to  the  particular  controversy  before  the 
land  office,  growing  out  of  the  application  on  the  one  side 
and  the  adverse  claim  on  the  other;"  (6)  that  "the  law  pro- 
vides, in  terms,  as  well  as  in  legal  intendrnent  and  effect, 
for  a  transfer  of  that  particular  controversy  to  the  courts;" 

(7)  that  "no  other  controversy  is  referred  to  in  the  act 
of  Congress,  and  no  other  is  or  can  be  intended,  or  the 
law  would  have  provided   for  the  certification  to  the  land 
office  of  the  judgment  roll  of  any  and  all  suits  pending;" 

(8)  that   the    land    office    "is    therefore    confined    to   the 
controversy  brought  before  it  by  the  filing  of  an  adverse 
claim,  and  to  the  suit  in  court  based  on  that  controversy, 
in   deciding  whether  or  not  to  suspend  proceedings,  and 
;how  long  to  suspend  them;"  (9)  that  no  suits,  except  that 


"  which  must  follow  the  filing  of  an  adverse  claim,  within 
thirty  days,  for  the  purpose  of  settling  the  controversy 
brought  before  the  land  office  thereby,  have  any  relation 
to,  or  bearing  upon,  the  proceedings  before  that  office,  but 
are  entirely  independent  thereof;"  (10)  that  the  suit  brought 
by  the  Magnolia  claimants  constitutes  no  part  of  the  pro- 
ceedings before  the  land  office;  (11)  that  "judgment,  if  ever 
rendered  therein,  cannot  be  made  a  part  of  the  record  of 
the  case  before  the  land  office,  or  the  basis  of  any  decision 
or  action  by  it;"  (12)  that  "the  only  controversy  recog- 
nized by  the  act  of  Congress  of  May  10,  1872,  is  that 
brought  before  the  land  office  by  the  filing  of  an  adverse 
claim  in  due  form,  time,  and  manner;"  (13)  that  "the  only 
action  in  the  courts  authorized  or  recognized  by  it  is  a 
special  action  on  the  case  based  upon  and  following  that 
controversy  for  the  purpose  of  settling  or  deciding  it;" 
(14)  that  "the  law  simply  provides  that  when  a  formal 
and  sufficient  application,  and  a  formal  and  sufficient  ad- 
verse claim,  covering  the  same  premises,  have  been  filed 
in  the  land  office,  in  due  and  proper  time  and  manner,  pro- 
ceedings shall  be -stayed,  and  the  controversy  initiated 
thereby  transferred  to  the  courts  for  settlement  and  deci- 
sion ;"  (15)  that  a  person  might  have  a  possessory  right 
which  would  constitute  the  basis  of  an  ejectment  suit,  but 
not  the  hasis  of  such  a  suit  as  the  law  contemplates — the 
right,  for  instance,  of  a  lessee  of  a  mine  ousted  by  his 
lessor;  (16)  that  "  the  adverse  claimants,  having  made  their 
declaration  in  the  court  a  part  of  their  adverse  claim,  and 
laid  a  copy  before  you,  you  have  a  right  to  disregard  it  if 
you  find  that  it  is  not  what  the  law  requires." 

The  foregoing  propositions,  which  are  stated  for  the 
most  part  in  the  language  of  the  counsel,  cover  the  whole 
reasoning  in  support  of  their  claim  that  there  has  been  no 
compliance  with  the  statutory  provision  requiring  the  ad- 
verse claimant  to  bring  his  action  in  the  courts  to  deter- 
mine the  question  of  the  right  of  possession. 

At  the  outset  the  state  of  facts  is  to  be  accurately  recalled. 
The  suit  in  question  was  not  an  old  action,  pending  be- 


tween  the  parties,  disconnected  with  this  controversy.  It 
was  not  commenced  before,  but  after  the  filing  of  the  ap- 
plication of  the  Mono  claimants  for  their  patent.  It  was- 
commenced  twenty-four  days  afttfr  the  filing  of  that  appli- 
cation; more  than  two  years  after  the  filing  of  the  Magno- 
lia location  notice  (June  20,  1870;)  more  than  one  year 
after  the  filing  of  the  original  location  notice  of  the  Mono 
claimants,  (November  24,  1871;)  and  twelve  days  before 
the  adverse  claim  was  filed.  The  action  was  commenced 
December  4, 1872.  The  local  land  officers  have  not  recom- 
mended the  issue  of  a  patent,  on  the  ground  that  the  Mag- 
nolia claimants  had,  by  a  failure  to  bring  suit  in  due  timey 
waived  their  adverse  claim.  They  do  not  intimate  in  their 
decision  that  there  was  any  such  waiver,  or  that  there  was 
any  failure  to  bring  the  action  in  due  time.  What  they  do 
decide  is,  not  that  the  adverse  claim  had  been  waived,  but 
that  it  was  in  form  and  substance  insufficient.  Of  course, 
therefore,  in  my  former  argument  the  question  of  waiver 
was  very  briefly  considered.  It  would  not  have  been  con- 
sid  ered  at  all,  but  for  the  circumstance  that  the  motion  of 
the  counsel  who  represented  the  Mono  claimants  before  the 
local  land  officers,  in  the  proceedings  in  which  the  adverse 
claims  were  dismissed  as  nullities,  contained  the  following 
words : 

"It  is  not  sufficient,  under  the  law,  for  them  to  allege., 
as  they  do  in  their  statement  (adverse  claim)  in  opposition 
to  said  application,  that  they  had  (i.  e.,  some  time  prior  to 
filing  their  supposed  adverse  claim)  commenced  an  action 
of  ejectment  against  these  adverse  claimants.  The  pro- 
ceedings, or  action,  contemplated  by  the  act  of  Congress, 
is  one  to  try  and  determine  the  right  of  possession,  as  dis- 
tinct from  the  fact  of  possession;  and  such  action  or  pro- 
ceedings must  in  all  eases,  as  a  duty  of  the  adverse  claim- 
ant, be  commenced  within  thirty  days  after  filing  his  adverse 
claim." 

In  commenting  upon  this  point,  I  presented,  incidentally, 
in  a  few  words  on  page  37,  the  considerations  which  it 
seemed  to  me  would  invalidate  this  objection,  even  if 
raised  in  a  proceeding  to  enforce  a  waiver  of  the  adverse 


claim,  instead  of  a  proceeding  to  dismiss  an  adverse  claim 
as  a  nullity. 

There  has  been  no  construction  of  the  particular  clause 
in  question,  either  by  the  Secretary  of  the  Interior,  or  the 
Commissioner  of  the  General  Land  Office,  or  by  any  other 
officer  of  the  Government,  or  by  any  judicial  tribunal,  to 
which  we  may  refer  for  an  exposition  of  the  intent  of  the 
legislature.  But  a  construction  has  been  given  to  similar 
language  of  another  law,  by  the  Supreme  Court  of  the 
United  States.  The  clause  of  the  mining  act  now  under 
consideration  is  in  these  words: 

"It  shall  be  the  duty  of  the  adverse  claimant,  within 
thirty  days  after  tiling  his  claim,  to  commence  proceedings 
in  a  court  of  competent  jurisdiction  to  determine  the  ques- 
tion of  the  right  of  possession,  and  prosecute  the  same,  with 
reasonable  diligence,  to  a  final  judgment;  and  a  failure  to 
do  so  shall  be  a  waiver  of  his  adverse  claim." 

The  third  section  of  the  captured  and  abandoned  prop- 
erty act  of  March  12,  1863,  contains  this  provision: 

"And  any  person  claiming  to  have  been  the  owner  of 
any  such  abandoned  or  captured  property  may,  at  any  time 
within  two  years  after  the  suppression  of  the  rebellion, 
prefer  his  claim  to  the  proceeds  thereof  in  the  Court  of 
Claims." 

In  Anderson's  case,  (7  Wallace,  125,  126,)  the  Supreme 
Court  of  the  United  States  stated  the  object  and  effect  of 
this  latter  provision  in  the  following  language: 

"But  the  point  most  pressed  in  the  argument  against 
the  right  to  recover  in  this  case  relates  to  the  limitation  of 
the  law.  It  in  contended  that  the  claim  was  barred  by 
this  limitation,  as  it  was  not  preferred  until  the  5th  of 
June,  1868.  It  is  therefore  necessary  to  determine  when 
the  time  for  preferring  claims  commenced  and  when  it 
ended.  The  words  of  the  statute  on  this  subject  are,  that 
any  person  claiming  to  be  the  owner  of  abandoned  or  cap- 
tured property  may,  at  any  time  within  two  years  after  the 
suppression  of  the  rebellion,  prefer  his  claim  to  the  pro- 
ceeds thereof  in  the  Court  of  Chums.  There  is  certainly 
nothing  in  the  words  of  this  provision  which  disables  a 
person  from  preferring  his  claim  immediately  after  the 


6 

proceeds  of  his  property  have  reached  the  Treasury;  and 
there  is  no  good  reason  why  a  different  interpretation 
should  be  given  them.  On  the  contrary,  there  is  sufficient 
reason,  in  the  nature  of  the  legislation  on  this  subject,  apart 
from  the  letter  of  the  law,  to  bring  the  mind  to  the  con- 
clusion that  Congress  intended  to  give  the  claimant  an  im- 
mediate right  of  action.  The  same  motive  that  prompted 
Congress  to  grant  the  privilege  to  prefer  a  claim  at  all 
operated  to  allow  it  to  be  done  so  soon  as  the  property  had 
been  converted  into  money.  If,  in  the  condition  of  the 
country,  it  was  known  that  the  Union  men  of  the  south,  as 
a  general  thing,  would  be  unable  to  prosecute  their  claims 
while  the  war  lasted,  still,  it  was  recognized  that  some  per- 
sons might  be  fortunate  enough  to  do  so;  and  to  meet  the 
requirements  of  their  cases,  the  right  to  sue  at  once  was 
conferred.  In  the  progress  of  the  war,  as  our  armies  ad- 
vanced, and  were  able  to  afford  protection  to  the  Union 
people,  it  was  expected  that  many  of  them,  availing  them- 
selves of  the  opportunity,  would  escape  into  the  National 
lines,  and  be  thus  in  a  condition  to  secure  the  rights  con- 
ceded to  them  by  this  statute;  and  the  history  of  the  times 
informs  us  that  this  expectation  was  realized.  To  impute 
to  Congress  a  design  to  compel  these  people,  impoverished, 
as  they  were  known  to  be,  to  wait  until  the  war  was  over, 
before  they  could  institute  proceedings  in  the  Court  of 
Claims,  would  be  inconsistent  with  the  general  spirit  of 
the  statute,  and  cannot  be  entertained.  If,  then,  the  right 
to  prefer  a  claim  attached  as  soon  as  the  money  reached 
the  Treasury,  when  did  it  expire?  *  *  *  As  Congress, 
in  its  legislation  for  the  army,  has  determined  that  the  re- 
bellion closed  on  the  20th  day  of  August,  1866,  there  is  no 
reason  why  its  declaration  on  this  subject  should  not  be 
received  as  settling  the  question  wherever  private  rights 
are  affected  by  it.  That  day  will,  therefore,  be  accepted 
as  the  day  when  the  rebellion  was  suppressed,  as  respects 
the  rights  intended  to  be  secured  by  the  captured  and 
abandoned  property  act." 

%       • 

It  is  unnecessary  to  cite  other  statutes  containing  pro- 
visions similar  to^that  now  under  consideration,  by  which 
the  commencement  of  the  action  is  limited  within  a  desig- 
nated period  after  some  event  other  than  the  inception  of 
the  right  of  action.  The  act  relating  to  captured  and 
abandoned  property  furnishes  a  perfect  analogy,  and  the 


judgment  of  the  supreme  court,  in  Anderson's  case,  is 
decisive  of  the  position  that  the  words,  "It  shall  be  the 
duty  of  the  adverse  claimant,  within  thirty  days  after  filing 
his  claim,  to  commence  proceedings,  in  a  court  of  compe- 
tent jurisdiction,  to  determine  the  question  of  the  right  of 
possession,"  do  not,  of  themselves,  show  that  the  legisla- 
tive intent  was  to  require  the  proceedings  to  be  com- 
menced after  the  adverse  claim  was  filed,  and  not  to  permit 
them  to  be  commenced  during  the  interval  between  the 
filing  of  the  application  for  the  patent  and  the  filing  of  the 
adverse  claim;  that  the  question,  whether  the  legislature 
did  or  did  not  intend  to  provide  that  the  proceedings 
should  not  be  commenced  before  the  adverse  claim  was 
filed  is  to  be  determined,  not  by  the  words  of  the  act,  but  by 
the  nature  of  the  legislation,  the  circumstances  of  the  case, 
and  the  general  scope  and  spirit  of  the  law.  Upon  these 
principles  of  interpretation,  the  Supreme  Court  construed 
the  analogous  provision  of  the  captured  and  abandoned 
property  act.  So  interpreted,  the  meaning  of  the  clause 
in  question  in  this  case  seems  to  me  to  be  too  obvious  and 
clear  to  admit  of  any  doubt.  I  cannot  doubt  that  the  com- 
mencement of  the  proceedings  by  the  Magnolia  claimants, 
twenty-four  days  after  the  application  of  the  Mono  claim- 
ants was  filed,  and  twelve  days  before  the  adverse  claim 
was  hied,  was  a  substantial  compliance  with  the  require- 
ments of  the  statute.  It  was  manifestly  the  purpose  of  the 
legislature  to  declare  that  after  one  claimant  had  filed  his 
application  for  a  patent,  all  other  claimants  of  the  same 
property  should  either  promptly  take  measures  to  have 
the  conflicting  claims  adjudicated  or  be  forever  foreclosed. 
If  the  adverse  claimant  sees  fit  to  avail  of  himself  of  the 
entire  sixty  days  of  publication  for  the  filing  of  his  own 
adverse  claim,  he  may  do  so.  And  he  may,  if  he  will, 
have  thirty  days  more  for  the  commencement  of  his  pro- 
ceedings to  determine  the  contest  between  the  applicant 
and  himself.  But,  whether  he  files  his  adverse  claim 
within  sixty  or  within  ten  days  after  the  tiling  of  the  appli- 
cation, or  commences  his  proceedings  in  court  within 


8 

thirty  or  ten  days  after  he  files  his  adverse  claim,  or -during 
the  interval  between  the  filing  of  the  application  and  the 
filing  of  the  adverse  claim,  the  rights  of  the  applicant  for 
the  patent  can  by  no  possibility  be  prejudiced.  Indeed, 
the  sooner  the  proceedings  are  commenced  the  better  for 
the  applicant,  if  he  acts  in  good  faith,  and  has  merit  in 
his  case.  After  he  has  filed  his  application,  all  his  just 
interests  demand  expedition  rather  than  delay.  And  it  is 
not  by  any  means  against  promptness  on  the  part  of  the 
adverse  claimant,  but  against  unreasonable  delay,  that  the 
provision  of  the  statute  is  made.  All  just  lawful  interests 
of  the  applicant  and  all  objects  contemplated  by  the  statute 
are  as  perfectly  subserved  by  the  commencement  of  the 
action  even  on  the  very  first  day  after  the  application  for 
the  patent  is  filed,  as  by  the  commencement  of  the  action 
ten,  twenty,  or  thirty  days  after  the  adverse  claim  is  filed. 
The  purpose  of  the  clause  was  to  compel  the  adverse 
claimant  to  commence  his  proceedings  before  the  expira- 
tion of  thirty  days  from  the  filing  of  the  adverse  claim. 
It  was  not  its  purpose  to  secure  the  commencement  of  the 
proceedings  after  the  commencement  of  those  thirty  days. 
Such  a  purpose  would  have  been  senseless  and  absurd. 
No  good  reason  for  such  a  requirement  has  been  or  can  be 
given.  The  meaning  of  the  statute  is  that  if,  at  the  ex- 
piration of  thirty  days  from  the  tiling  of  the  adverse  claim, 
the  proceedings  shall  not  have  been  commenced,  the  ad- 
verse claim  shall  be  waived. 

•  There  was  a  stronger  ground  of  principle  for  applying 
the  limitation  to  the  commencement,  as  well  as  the  end  of 
the  period  of  time  allowed  for  commencing  the  action  in 
the  captured  and  abandoned  property  act,  than  in  the 
mining  act  of  1872.  Indeed,  several  years  before  the 
decision  of  the  Supreme  Court  in  Anderson's  case  was 
rendered,  three  of  the  six  judges  of  the  Court  of  Claims 
(the  chief  justice  dissenting  and  two  judges  not  sitting) 
had  construed  the  statute  to  require  the  action  to  be 
brought  after  the  suppression  of  the  rebellion,  basing  their 
construction  on  the  ground  that  uthe  act  contemplates 


property  abandoned  or  captured  in  States  in  insurrection 
and  belonging  to  their  inhabitants,  and  these  cannot  bring 
suits  while  their  States  are  in  rebellion,  nor  until  the  effect 
of  the  President's  proclamation  of  August  16,  1861,  is  re- 
moved from  them.  We  think  this  is  the  reason  of  the 
limitation  in  the  act,  and  that  it  construes  it."  (1  Ct. 
Cl.  169.)  This  judgment  of  a  divided  inferior  court,  what- 
ever it  may  have  originally  amounted  to,  was  of  course 
swept  away  by  the  unanimous  decision  in  Anderson's  case. 

Instead  of  making  the  promptness  of  the  Magnolia  claim- 
ants a  pretext  for  an  attempt  to  bar  their  rights  by  a  sheer 
verbal  technicality,  the  Mono  claimants  ought  to  thank 
them  for  their  commendable  diligence  in  commencing  the 
proceeding  within  less  than  a  month  after  the  filing  of  the 
application  for  the  patent,  and  a  few  days  before  they  filed 
their  own  adverse  claim,  when  they  might  have  lawfully 
postponed  it  for  ninety  days.  Only  the  exigencies  of  a 
most  desperate  case  could  prompt  the  Mono  claimants 
under  such  circumstances  to  invoke  an  interpretation  so 
harsh,  narrow,  and  unsound. 

But  further,  the  object  and  policy  of  the  act  of  July  26, 
1866,  were,  so  far  as  this  point  is  concerned,  the  same  as 
the  object  and  policy  of  the  act  of  May  10,  1872,  although 
the  verbinge  of  the  former  crude  act  was  different  from 
that  of  the  latter.  The  corresponding  clause,  in  the  act  of 
1866,  stood  in  these  words  :  "  Whenever  any  adverse  claim- 
ants to  any  mine,  located  and  claimed  as  aforesaid,  shall 
appear  before  the  appioval  of  the  survey,  as  provided  in 
the  third  section  of  this  act,  all  proceedings  shall  be  stayed 
until  final  settlement  and  adjudication,  in  the  courts  of 
competent  jurisdiction,  of  the  rights  of  possession  to  such 
claim,  when  a  patent  may  issue  as  in  other  cases."  It  be- 
ing settled,  by  the  decision  of  the  Supreme  Court  in  An- 
derson's case,  that  the  words  of  the  statute  of  1872  do  not 
require  the  proceeding  to  be  commenced  after  the  adverse 
claim,  but  the  intent  of  Congress,  on  this  point,  is  to  be 
determined  by  the  nature  and  circumstances  of  the  case, 
and  the  general  spirit  and  scope  of  the  statute,  cases  un- 


10 

der  the  acts  of  1866  and  1872  stand  on  precisely  the  same 
footing,  so  far  as  this  point  is  concerned.  That  is  to  say, 
if  the  act  of  1872,  by  its  general  scope  and  object,  under 
the  circumstances  of  the  case,  requires  the  proceedings  to 
try  the  right  of  possession  to  be  commenced  after  the  ad- 
verse claim  is  filed,  so  also  does  the  act  of  1866,  for  the 
same  reason,  require  the  same  thing.  For  while  it  is  true 
that  the  words  of  the  act  of  1866  do  not  require  this,  it  is 
also  equally  true  that  under  the  ruling  of  the  Supreme 
Court,  in  Anderson's  case,  the  words  of  the  act  of  1872  do 
not  require  it.  So  far  as  this  point  is  concerned,  then,  a  case 
arising  under  the  act  of  1866  would  not  be  without  weight 
as  a  precedent  for  the  present  case. 

The  case  of  the  "Bullion  Mining  Company  v.  420  Min- 
ing Company,"  decided  by  the  commissioner,  August  19, 
1873,  was  such  a  case.  The  Bullion  Company  filed  their 
application  for  a  patent  on  the  6th  of  November,  1867, 
and  the  adverse  claim  of  the  420  Company  was  filed,  in 
due  time,  within  thirty  days  thereafter.  The  only  pro- 
ceeding ever  commenced  in  the  courts  to  determine  the 
right  of  possession,  between  these  parties,  up  to  Novem- 
ber 29,  1872,  (a  date  more  than  five  years  subsequent 
to  the  filing  of  the  application  for  the  patent,)  was  an  ac- 
tion commenced,  not  by  the  adverse  claimants,  but  by  the 
applicants  themselves  against  the  adverse  claimants,  on 
the  16th  day  of  November,  1865,  two  years  before  the 
filing  of  the  application  for  the  patent  by  the  Bullion  Com- 
pany. After  this  action  had  been  pending  several  years, 
the  Bullion  Company  discontinued  it,  and  the  adverse 
claimants,  the  420  Company,  on  the  29th  of  November, 
1872,  commenced  suit  against  the  Bullion  Company.  But 
the  commissioner  decided  that  this  was  sufficient  to  en- 
title the  420  Company  to  an  adjudication  in  the  courts, 
before  a  patent  should  issue  on  the  application  of  the  Bul- 
lion Company.  (Copp,  221.)  This  authority,  so  far  as  it 
goes,  is  favorable  to  the  Magnolia  Mining  Company  in  the 
present  case. 

The  reason  why  actions  cannot  be  commenced,  under 


11 

ordinary  modern  statutes  of  limitation,  until  the  period  of 
limitation  begins,  is  that  these  statutes  usually  fix  a  certain 
limitation  jfrowi  the  time  when  the  cause  of  action  accrues.  Of 
course  the  action  cannot  be  commenced  before  the  cause 
of  action  accrues.  And  it  is  this  circumstance,  and  not 
the  language  of  the  act,  which  prevents  the  commence- 
ment of  the  action  before  the  period  begins,  as  well  as 
after  it  expires.  For  example,  the  modern  statute  of  lim- 
itation usually  follows  this  form  : 

"No  person  shall  commence  an  action  for  the  recovery 
of  any  lands,  unless  within  (say  twenty)  years  after  the 
right  to  bring  such  action  first  accrued." 

Under  a  statute  so  worded,  obviously  an  action  cannot 
be  commenced  before  the  twenty  years  begin  to  run,  or 
after  they  end.  But  the  reason  why  it  cannot  be  com- 
menced before  the  term  begins,  is  altogether  different 
from  the  reason  why  it  cannot  be  commenced  after  the 
term  ends.  It  is  the  prohibition  of  the  statute  which  cuts 
off  an  action  after  the  term  ends.  But  it  is  the  nature  of 
the  case,  the  want  of  a  cause  of  action,  which  cuts  it  off 
before  the  term  begins.  In  ancient  statutes  of  limitation 
the  phraseology  was  often  different.  For  illustration,  the 
statute  32  Henry  VIII,  chapter  2,  enacted  A.  D.  1540,  con- 
tains this  provision  : 

"No  ]>erson  or  persons  shall  sue,  have,  or  maintaine  any 
action  for  any  manors,  lands,  tenements,  or  other  heredita- 
ments, of,  or  upon,  his,  or  their,  own  seizin  above  30  years 
next  before  the  teste  of  the  originall  of  the  same  writ  to  be 
brought,"  &c. 

In  this  statute  the  period  is  measured  backward  from 
the  commencement  of  the  action  to  the  time  when  the 
right  of  action  accrued,  and  if  it  exceeds  thirty  years  the 
action  cannot  be  commenced.  In  the  ordinary  statute,  the 
period  is  measured  forward  from  the  time  when  the  cause 
of  action  accrued  to  the  commencement  of  the  action,  and 
if  it  exceeds  the  period  prescribed,  the  action  cannot  be 
brought.  And  yet,  so  far  as  the  question  when  the  time 
within  which  the  action  may  be  brought  begins  is  con- 


12 

cerned,  the  effect  of  both  forms  of  enactment  is  the  same. 
In  neither  case  can  the  action  be  commenced  before  the 
cause  of  action  accrues.  In  both  cases  it  may  be  brought 
as  soon  as  the  cause  of  action  accrues.  In  neither  case 
does  the  language  of  the  statute  determine  when  the  action 
may  first  be  commenced,  but  in  both  cases  that  is  deter- 
mined by  the  nature  and  circumstances  of  the  case. 

The  statute  of  limitations  of  21  James  I,  chapter  16r 
enacted  in  1623,  contained  this  provision: 

"And  that  no  person,  or  persons,  that  now  hath  any  right 
or  title  of  entry  into  any  manors,  lands,  tenements,  or 
hereditaments,  now  held  from  him  or  them,  shall  there- 
into enter  but  within  20  years  after  the  end  of  this  pres- 
ent session  of  parliament." 

The  construction  insisted  upon  by  the  counsel  for  the 
Mono  Company  would  have  interdicted  all  such  proceed- 
ings during  the  interval  between  the  taking  effect  of  the 
act  and  the  end  of  the  session  of  Parliament,  if  any  such 
interval  had  occurred. 

The  foregoing  considerations  dispose  of  the  first  propo- 
sition of  the  counsel  for  the  Mono  claimants,  so  far  as  it 
touches  the  point  now  before  us.  That  is  to  say,  they 
show  that  neither  the  words  nor  the  general  scope  and 
spirit  of  the  act  warrant  the  pretense  that  the  proceedings 
commenced  by  the  Magnolia  claimants  twenty-four  days 
after  the  application  for  the  patent  was  filed,  and  twelve 
days  before  the  adverse  claim  was  filed,  were  not  in  sub- 
stantial conformity  with  the  requirements  of  the  statute. 

But  the  counsel  for  the  Mono  claimants  think  that  aside 
from  the  uiords  in  question,  they  find,  in  concomitant  pro- 
visions of  the  statute,  proof  that  the  legislature  intended 
absolutely  to  require  the  action  to  be  commenced  after  the 
filing  of  the  adverse  claim.  This  is  stated  generally,  in  the 
2d  and  3d  propositions  of  their  argument,  in  these  words: 

2d.  That  the  law  makes  the  action  "a  branch  and  part  of 
the  proceedings  instituted  by  the  application  for  a  patent." 

3d.  That  the  action  "involves  the  identical  controversy 


13 

growing  out  of  the  filing  of  an  adverse  claim  in  the  land 
office." 

Now,  these  two  points  amount  to  this,  if  they  amount  to 
anything  material  to  the  question  under  consideration, 
that  the  statute  means  that  the  identical  formal  issues, 
originated  by  the  filing  of  the  application  for  the  patent 
and  the  adverse  claim,  shall  be  sent  to  the  courts  for  adju- 
dication; that  this  adjudication  is  a  part  of  the  proceed- 
ings for  the  issue  of  a  patent,  and  that,  inasmuch  as  these 
issues  cannot  be  sent  to  the  courts  until  made  up  by  the 
filing  of  the  adverse  claim,  Congress  must  have  intended 
that  the  proceedings  in  the  courts  should  commence  after 
the  adverse  claim  was  filed. 

It  would  be  hard  to  conceive  of  a  more  radical  miscon- 
ception of  this  statute.  While  it  is  true  and  very  manifest 
that  the  issues  which  are  substantially  exhibited  in  the 
application  and  adverse  claim,  virtually  constitute  the 
controversy  which  is  to  be  adjudicated  b}7  the  court,  it  is 
manifestly  not  true  that  these  documents  originate  the 
precise  formal  issues  which  are  to  be  sent  to  the  court. 
The  controversy  to  be  tried  in  the  courts  originates  with 
the  antagonistic  location  notices,  and  in  the  present  case, 
instead  of  originating  with  the  application  and  adverse 
claim, it  originated  more  than  a  year  before  the  application 
was  filed,  when  the  Mono  Company,  on  the  24th  day  of 
November,  1871,  attempted  a  location  of  this  mine  hostile 
to  that  made  by  the  Magnolia  Company,  on  the  20th  of 
June,  1870.  The  controversy  to  be  decided  by  the  courts 
is  shown,  but  not  originated  by  the  application  and  adverse 
claim.  Nothing  could  have  been  further  from  the  inten- 
tion of  Congress  than  to  require  the  parties  by  the  applica- 
tion and  adverse  claim  to  frame  specific  issues  for  trial  in 
a  special  form  of  action  in  the  courts.  Is  it  supposed  that 
Congress  deliberately  attempted  to  do  that  which  it  had 
no  constitutional  power  to  do?  Who  authorized'Congress 
to  prescribe  issues  and  forms  of  action  for  State  courts,  to 
send  formal  issues  from  federal  tribunals  to  State  tribu- 
nals for  adjudication  in  prescribed  forms,  and  to  make 


14 

such  adjudication  by  the  State  tribunals  a  part  and  parcel 
of  the  proceedings  of  the  federal  tribunals?  Who  author- 
ized Congress  to  send  particular  formal  issues,  made  by 
the  application  and  adverse  claim,  from  the  land  office 
to  a  State  court,  and  to  make  the  adjudication  of  those 
issues,  in  a  prescribed  form  of  action,  a  branch  and  part 
of  the  proceedings  of  the  land  office?  The  "court  of 
competent  jurisdiction"  indicated  in  the  statute,  if  the 
mine  were  situated  in  a  Territory,  would,  of  course,  be  a 
territorial  court,  and  therefore  subject  to  federal  control. 
But  if  the  mine  happens  to  be  in  a  State,  the  court  of 
competent  jurisdiction  may  be,  and  in  fact  almost  always 
is,  a  State  court,  over  whose  forms  and  modes  of  procedure 
and  practice  Congress  has  no  more  control  than  a  foreign 
legislature. 

It  might  be  competent  for  the  legislature  of  the  State  of 
Texas,  which  has  a  land  system  independent  of  the  Fede- 
ral Government,  and  at  once  controls  the  State  land  office 
and  the  State  courts,  to  provide  by  statute  that  a  particu- 
lar issue  raised  in  a  specific  form  in  the  State  land  office 
should  be  remitted  to  and  tried  by  the  courts  as  a  part  of 
the  land  office  proceedings.  It  would  be  competent  for  the 
State  legislature,  in  the  absence  of  any  interdiction  by  the 
State  constitution,  to  mould  the  action  in  any  form,  and 
give  it  any  name,  at  its  discretion.  For  its  jurisdiction 
covers  the  whole  ground.  But  for  one  sovereignty  to  at 
tempt  so  to  invade  the  tribunals  of  another  is  wholly  out  of 
the  question.  It  is  wild  to  assert  that  Congress  intended 
any  such  thing.  There  is  not  the  slightest  evidence  of  any 
such  folly.  The  proceeding  in  the  court  is  not  a  branch  or 
part  of  the  proceedings  before  the  land  office,  in  any  such 
sense  as  that  intended  by  the  counsel;  in  any  such  sense 
that,  chronologically,  the  functions  of  the  court  must  com.- 
me.nce  when  those  of  the  land  office  are,  by  the  filing  of  the 
adverse  claim,  suspended.  It  would  be  no  more  erroneous  or 
illogical  to  assert  that,  when  a  record  of  a  foreign  judg- 
ment in  rem  is  introduced,  and  disposes  of  an  action  in  one 
of  our  courts,  the  foreign  adjudication  is  a,  part  of  the  pro- 


15 

ceedings  in  our  own  court.  It  is  true  that  the  result  of  the 
adjudication  of  the  courts  is  to  be  accepted  by  the  land 
office  as  decisive  of  the  case  before  it,  just  as  the  result  of 
the  foreign  adjudication  of  an  action  in  rem  is  accepted  as 
decisive  in  our  courts.  But  no  more  in  one  case  than  in 
the  other  is  one  proceeding  a  consecutive  integral  part 
of  the  other.  It  might,  with  the  same  propriety,  be  pre- 
tended that,  because  the  recognition  of  a  particular  State 
government  by  the  political  branch  of  the  Federal  Gov- 
ment,  becomes  a  rule  of  decision  for  the  judiciary,  in  a, 
given  case,  therefore  the  action  of  Congress  in  the  prem- 
ises is  a  branch  and  part  of  the  case  in  court.  Indeed,  it 
might  as  well  be  said  of  every  judgment  and  decree  hereto- 
fore or  hereafter  rendered,  that  the  case  in  which  it  is 
pronounced  is  a  branch  and  part  of  all  proceedings  which 
it  happens  to  affect. 

•  Of  course  the  counsel  are  not  practicing  the  artifice  of 
arguing  or  assuming  the  truth  of  a  proposition  in  one 
sense,  and  then  applying  and  using  it  in  another.  When 
they  assert,  in  the  3d  proposition,  that  the  action  "involves 
the  identical  controversy  growing  out  of  the  filing  of  an 
adverse  claim  in  the  land  office,"  I  understand  them  to 
mean  that  it  consists  of  the  specific  formal  issues  raised  by 
the  application  and  adverse  claim,  and  not  merely  that  it 
consists  of  the  same  issues  which  are  substantially  shown 
in  those  documents.  If  the  latter  is  their  meaning,  of 
course  it  is  correct;  but  it  also  wholly  destroys  their  argu- 
ment. If  the  former  is  in  the  meaning,  then,  as  I  have  al- 
ready shown,  it  is  wholly  erroneous. 

The  subsidiary  points  or  propositions  made  by  the  coun- 
sel will  now  be  considered.  To  a  great  extent  they  are 
modified  statements  of  those  already  examined.  The  first 
of  them  has  already  been  answered.  The  second,  which 
is  the  assertion  that,  "  prior  to  the  filing  of  an  adverse 
claim,  there  is  no  controversy  before  the  land  office  to 
be  referred  or  transferred  to  the  courts" — whatever  mean- 
ing shall  be  attached  to  its  ambiguous  phraseology — has 
also  been  considered.  Only  a  few  words  will  be  added. 


16 

If  it  is  only  meant  that,  prior  to  the  filing  of  the  adverse 
claim,  there  was  before  the  land  office  no  such  technical 
dispute  as  consists  of  an  application  for  a  patent  on  one 
side,  and  an  adverse  claim  on  the  other,  of  course  the 
assertion  is  true;  but  it  is  a  mere  frivolous  play  upon 
words.  If,  however,  the  meaning  is  that,  prior  to  the 
filing  of  the  adverse  claim,  the  controversy,  which  the 
law  submits  to  the  courts,  does  not  exist,  the  assertion  is 
palpably  erroneous.  Whether  it  was  or  was  not  techni- 
cally before  the  land  office  is  wholly  immaterial.  No  pro- 
vision of  the  law,  expressly  or  by  implication,  required  it 
to  be  before  the  land  office.  In  the  case  of  the  "  Bullion 
Mining  Company  v.  420  Mining  Company,"  the  contro- 
versy had  been  pending  in  the  court  two  years  before 
either  the  adverse  claim  or  the  application  itself  was  filed. 
The  third  point  is  covered  by  the  considerations  already 
suggested. 

In  the  sense  in  which  it  is  true,  the  fourth  proposition  is 
altogether  immaterial.  In  the  sense  in  which  it  would  be 
material,  it  is  not  true.  It  is  true  that  the  commencement 
of  a  hundred  suits  not  connected  with  the  controversy, 
which  is  or  should  be  substantially  shown  by  the  applica- 
tion and  adverse  claim,  would  not  answer  the  requirements 
of  the  law.  But  the  suit  pending  between  the  Magnolia 
and  Mono  companies  is  connected  with  the  controversy 
shown  by  the  application  and  adverse  claim.  It  is,  in  sub- 
stance, the  identical  controversy  shown  by  those  documents. 
But  it  is  not  true  that  the  commencement  of  the  suit  can 
only  be  valid  to  affect  the  proceedings  in  the  land  office 
when  the  suit  involves,  in  a  particular  form  of  action,  spe- 
cific issues  formally  originated  by  the  application  and 
adverse  claim.  And  yet  this  latter  proposition  is  the  prop- 
osition which  must  be  true  to  be  of  any  avail  to  the  argu- 
ment of  the  counsel  for  the  Mono  claimants. 

The  counsel  is  mistaken  as  to  the  significance  of  the  use 
of  the  definite  article  in  the  clause  under  consideration. 
An  examination  of  the  last  sentence  of  section  6  and  the 
first  two  sentences  of  section  7  shows  this  at  once.  Who 


17 

says  that  u the  controversy"  is  a  controversy  originated  l>y 
the  application  and  adverse  claim,  and  not  the  controversy 
which  originated  in  the  hostile  location  claims?  It  is  the 
counsel,  and  not  the  legislature.  Nothing  in  the  act, 
expressly  or  by  implication,  authorizes  any  such  assump- 
tion. The  employment  of  the  definite  article  "the"  does 
signify  that  the  adjudication  must  cover  the  controversy, 
respecting  the  right  of  possession  of  the  property  in  ques- 
tion, growing  of  hostile  location  claims,  and  not  a  contro- 
versy of  a  different  origin  or  character.  But  it  does  not 
signify  that  only  specific  issues,  formally  raised  by  the 
application  and  adverse  claim,  are  to  be  adjudicated. 

All  the  statements,  from  the  sixth  to  the  thirteenth,  in- 
clusive, being  statements,  in  other  forms,  of  propositions 
already  considered,  it  is  unnecessary  to  say  anything  fur- 
ther in  reply  to  them.  But  in  view  of  the  language  and 
spirit  of  the  law,  and  of  the  relations  between  the  federal 
legislature  and  the  State  courts,  the  assertion  that  "the 
only  action  in  the  courts  authorized  or  recognized  by  this 
law  is  a  special  action  on  the  case,  based  upon  and  follow- 
ing a  controversy  raised  by  the  application  and  adverse 
claim,"  must  certainly  be  deemed  a  courageous  assertion. 
In  connection  with  this,  I  beg  leave  to  refer  to  page  38  of 
my  former  argument. 

The  fourteenth  proposition  has  also,  of  course,  been  an- 
swered. It  is  not  true  that  the  statute  provides  that  "the 
proceedings  shall  be  stayed,  and  the  controversy  initiated 
thereby  (/'.  t'.,  by  tiling  the  application  and  adverse  claim) 
transferred  to  the  courts."  The  statute  provides  that  "all 
proceedings,  except  publication  of  notice,  and  making  and 
filing  of  the  affidavit  thereof,  shall  be  stayed  until  the  con- 
troversy shall  have  been  settled  or  decided  by  a  court  of 
competent  jurisdiction,  or  the  claim  waived."  It  does  not 
provide  for  or  contemplate  a  "transfer"  of  anything  from  a 
federal  land  office  to  a  State  or  territorial  court.  Still  less 
does  it  provide  for  transferring  a  controversy  formally  ini- 
tiated in  the  land  office.  It  stays  proceedings  in  the  land 
office  until  proceedings  which  may  be  had  in  a  State  court, 
3 


18 

over  which  Congress  has  no  more  control  than  a  foreign 
prince,  settle  the  possessory  rights  of  the  parties  under 
State  and  territorial  laws  and  miners'  rules  and  regula- 
tions. And  the  controversy  so  settled  is  not  one  initiated 
by  the  filing  of  the  application  and  adverse  claim,  but  it  is 
one  initiated  by  the  filing  of  the  location  claims  of  the  par- 
ties, and  substantially  exhibited,  but  not  created,  by  the 
application  and  adverse  claim. 

The  drift  of  the  fifteenth  and  sixteenth  propositions  is 
to  show,  not  that  the  suit  was  commenced  too  soon,  but 
that  it  was  not  of  the  right  kind.  It  is  to  be  observed 
incidentally  that,  as  the  local  land  officers  did  not  decide 
that  the  action  was  commenced  too  soon,  so  also  did  they 
not  decide  that  the  action  was  not  of  the  right  kind. 
Now,  to  what  I  have  said  on  this  subject,  on  pages  38 
aud  39  of  my  former  argument,  I  will  only  add  that  the 
man  who  can  read  the  application  and  adverse  claim  and 
the  original  and  amended  complaints  and  answer,  in  the 
pending  ejectment  suit,  and  doubt  that  the  controversy 
now  pending  before  the  Utah  court  is  the  same  controversy 
which  originated  in  the  conflicting  location  notices  of  the 
parties,  and  is  shown  by  the  application  and  adverse  claim, 
while  he  may  make  a  capital  advocate,  would  certainly 
make  a  very  poor  judge. 

II. 

But  the  counsel  for  the  Mono  applicants  further  insist 
that  the  adverse  claim  under  consideration  is  informal  and 
insufficient,  for  two  reasons  : 

1st.  ''Because  it  does  not  show  the  nature  of  the  claim, 
or  that  the  adverse  claimants  have  any  right  .thereto." 

2d.  Because  "  the  parties  claim  by  purchase,  and  do  not 
show  or  prove  the  citizenship,  either  of  the  original  loca- 
tors, or  the  parties  to  the  several  alleged  mesne  conveyances 
through  which  they  claim  to  have  derived  their  title." 

In  support  of  the  first  of  these  objections,  the  counsel 
reason  as  follows :  that  the  language  of  the  law  requires 
the  adverse  claimant  not  merely  to  allege,  but  to  show,  the 


19 

nature  of  his  claim;  that  while  this  showing  need  not 
amount  to  conclusive  proof  it  must  amount  to  ex  parte  proof 
that  the  adverse  claim  is  superior  or  paramount  to  the  claim 
of  the  applicant ;  and  that  the  regulations  of  the  land  office 
requiring  an  abstract  of  title  to  be  filed  as  such  ex  parte 
proof,  have  the  force  of  law. 

Not  only  is  the  proposition,  that  the  adverse  claim  is 
informal  and  insufficient,  "  because  it  does  not  show  the 
nature  of  the  claim,  or  that  the  adverse  claimants  have  any 
right  thereto,"  erroneous,  but  all  the  reasoning  offered  in 
its  support  is,  in  all  its  parts,  from  beginning  to  end,  vicious 
and  unsound.  In  the  first  place,  the  notion  that  the  lan- 
guage of  the  statute  requires  the  adverse  claimant  to  prove 
the  nature  of  his  claim,  involves  a  twofold  error,  a  com- 
pound fracture,  of  law  and  logic.  The  statute  does  not 
require  the  adverse  claimant  to  show  the  nature  of  his  claim. 
It  requires  the  adverse  claim  to  show  the  nature  of  the 
claim.  And  it  also  requires  this  adverse  claim  to  be  upon 
the  oath  of  the  claimant.  The  precise  words  of  the  clause 
are  these: 

"SEC.  7.  That  when  an  adverse  claim  shall  be  filed  dur- 
ing the  period  of  publication,  it  shall  be  upon  oath  of  the 
person  or  persons  making  the  same,  and  shall  show  the 
nature,  boundaries,  and  extent  of  such  adverse  claim." 

This  language  excludes  the  idea  that  the  certificates  of 
officers  shall  be  a  part  and  parcel  of  the  adverse  claim. 
The  adverse  claimant  swears  to  the  adverse  claim,  but  not 
to  the  certificates  of  local  officers.  Inasmuch,  then,  as  it 
is  the  adverse  claim,  which  is  to  show  the  nature  of  the  claim, 
and  this  adverse  claim  consists  of  the  sworn  statement  of 
the  adverse  claimant  and  not  of  the  certificates  of  some- 
body else,  the  attempt  to  foist  into  the  adverse  claim 
something  which  the  law  does  not  place  there  is  altogether 
vain. 

But,  furthermore,  the  word  "show"  here  means  not 
prove,  but  allege  as  it  ordinarily  does  in  pleadings  both  at 
law  and  in  equity.  It  means  averment  in  the  adverse  claim, 
upon  the  oath  of  the  adverse  claimant,  and  not  proof  by 


20 

outside  certificates.  The  word  "show"  may,  indeed,  mean 
prove,  but  it  may  also  mean  allege,  aver,  set  forth.  In  view 
of  the  fact  that  the  statute  provides  for  no  showing  on  this 
subject,  except  that  in  the  adverse  claim,  which  is  upon  the 
oath  of  the  adverse  claimant,  it  is  as  unreasonable  to  say 
that  this  showing  must  consist  of  proof  from  third  persons, 
as  it  would  be  to  assert  that  the  words,  "your  orator  further 
showreth,"  in  the  ordinary  chancery  bill,  signify  not  that 
the  pleader  alleges,  but  that  he  proves  by  evidence  ab  extra, 
the  facts  set  forth. 

In  the  next  place,  the  assertion  that  while  the  showing 
need  not  amount  to  conclusive  proof,  it  must  amount  to 
ex  parte  proof,  involves  as  radical  a  misconception  of  the 
nature  of  evidence  as  of  the  provision  of  the  clause  now 
under  consideration.  In  evidence,  the  distinction  is  not 
between  conclusive  and  ex  parte,  but  between  conclusive 
and  prirna  facie,  or  presumptive  evidence.  Evidence  taken 
on  notice  may  be  prima  facie  or  presumptive,  and  evidence 
taken  ex  parte  may  be  conclusive.  If,  under  a  statute, 
a  proceeding  is  had  wholly  upon  affidavits  and  counter 
affidavits,  of  course  ex  parte  evidence,  being  the  only  evi- 
dence in  the  case,  must  be  conclusive.  But  whether  the 
testimony  of  a  witness,  examined  and  cross-examined  on 
the  stand  in  court,  is  prima  facie  or  conclusive,  depends 
on  the  other  testimony  in  the  case.  Furthermore,  the 
adverse  claim  which,  and  which  alone,  is  required  to  show 
the  title,  and  is  to  bo  sworn  to  by  the  adverse  claimant, 
is  the  precise  showing,  and  the  precise  prima  facie  and 
ex  parte  proof,  which  the  statute  provides.  This  affidavit, 
or  sworn  statement,  is  ex  parte,  and  under  the  statute  it  is 
made  prima  facie  proof.  It  is  the  prima  facie  proof  called 
for,  and  all  the  prima  facie  proof  called  for.  If  the  legis- 
lature had  not  intended  this  as  a  prima  facie,  ex  parte  show- 
ing of  title,  it  would  not  have  required  it  to  be  made  on  the 
oath  of  the  adverse  claimant.  If  it  had  required  anything 
else  besides  the  adverse  claim  to  show  the  title,  (as,  for  ex- 
ample, the  certificates  of  local  officers,)  it  would  have  given, 


21 

somewhere  in  the  statute,  some  intimation  of  such  a  re- 
quirement. 

In  the  third  place,  the  assertion  that  the  regulation  of 
the  land  office  requiring  the  adverse  claimant  to  file  an 
abstract  of  title,  or  an  original  conveyance,  or  a  duly  cer- 
tified copy  thereof,  with  the  adverse  claim,  has  the  force 
of  law,  is  altogether  erroneous.  Whatever  the  statute  re- 
quires to  be  shown  is  to  be  shown  by  the  adverse  claim 
itself,  on  oath  of  the  adverse  claimant,  and  not  by  some- 
thing else  outside  of  the  adverse  claim.  And  that  the  com- 
missioner cannot  amend  the  law  by  an  order,  cannot  legis- 
late by  regulation,  is  not  only  too  clear  on  the  face  of  the 
case  to  admit  of  argument,  but  has  been  expressly  decided 
by  the  Secretary  of  the  Interior,  who,  in  the  case  of  the 
"Jenny  Lind  Mining  Company  r.  Eureka  Mining  Com- 
pany," held  that  these  regulations  hace  not  the  force  of  law. 
The  commissioner,  in  rejecting  the  Jenny  Lind  adverse 
claim,  March  23,  1873,  had  expressed  his  view  in  these 
words : 

"This  (Jenny  Lind)  adverse  claim  is,  in  the  main,  made 
out  in  the  form  prescribed  by  law,  and  by  the  instructions 
from  this  office,  although  no  abstract  of  title  is  on  file  from 
the  office  of  the  proper  recorder,  tracing  the  title  from  the 
original  locators  to  the  Jenny  Lind  Mining  Company." 
(Copp.  168.) 

There  were  other  adverse  claims  in  the  case,  including 
the  "  May  Henrietta"  and  the  "King David."  The  Jenny 
Lind  Company  appealed  from  the  commissioner's  dc'eision 
rejecting  their  adverse  claim.  But  they  also  objected  to 
the  "May  Henrietta"  and  "King  David"  adverse  claims, 
which  hkd  been,  with  their  own,  rejected  by  the  commis- 
sioner, placing  their  objection  upon  the  ground  that  those 
adverse  claims  were  sworn  to,  not  by  the  adverse  claimants 
themselves,  but  by  an  attorney.  The  Secretary,  on  the 
24th  November,  1873,  enclosed  to  the  commissioner  two 
opinions"  of  the  Assistant  Attorney  General  in  the  case, 
dated  respectively  September  f>0,  1873,  and  November  22, 
1873,  announcing  his  concurrence  in  the  conclusions  there- 


22 

in  reached,  and,  in  accordance  therewith,  overruling  the 
rejection  of  the  Jenny  Lind  adverse  claim,  but  sustaining 
the  rejection  of  the  May  Henrietta  and  King  David  adverse 
claims,  on  the  ground  that  those  two  adverse  claims  were 
sworn  to,  not  by  the  adverse  claimants  themselves,  but  by 
their  attorney.  (Copp.,  169.) 

The  opinion  of  September  30, 1873,  contains  the  follow- 
ing words : 

"  The  regulations  issued  by  the  commissioner,  it  is  true, 
require  that  there  shall  be  such  a  plat  and  field-notes,  but 
that  they  do  not  hare  the  force  of  law,  and  were  never  intended 
to  operate  as  a  bar  where  an  applicant,  in  good  faith,  has 
done  all  in  his  power  to  comply  with  them.  And  so  with 
reference  to  the  abstract  of  title.  It  is  convenient  to  have  such 
abstract,  for  the  purpose  of  showing  how  the  claimant  de- 
rives title,  and  therefore  the  adoption  of  the  rule  by  the 
commissioner.  If  the  adverse  claimants  properly  allege  that 
they  are  the  owners  of  the  claim,  that  is  good  pleading,  and  suf- 
ficient to  notify  the  applicant  for  patent  of  what  is  claimed.  I 
think  that  an  omission  to  file  this  abstract  should  be  treated  as  an 
irregularity  merely,  and  not  as  a  defect  that  vitiates  the  adverse 
claim.  No  one  is  injured  by  the  omission,  and  it  would  be  ex- 
tremely technical  to  treat  it  as  good  cause  for  rejecting  the  claim." 
(Copp.,  173.) 

This  opinion  also  contains  these  words  : 

"Some  other  objections  are  made,  which  prevent  the 
question  whether  the  adverse  claimants  are  required  to 
show  affirmatively  that  they  have-  complied  with  all  the 
local  usages  and  customs.  I  think  they  are  not.  If  they 
have  failed  to  comply  with  such  usages,  and  a  forfeiture  is 
denounced  for  such  failure,  that  is  a  matter  of  defense." 
(Copp.,  174.) 

The  opinion  of  November  22,  1873,  contains- the  fol- 
lowing : 

"The  Eureka  Company  objects  to  each  of  the  following 
adverse  claims,  to  wit:  The  May  Henrietta  lode,  the  Ex- 
celsior lode,  and  the  King  David  lode,  for  the  reason  that 
they  were  severally  sworn  to  by  I).  Cooper,  as  attorney, 
instead  of  by  the  persons,  or  some  of  them,  who  are  alleged 
to  be  the  owners  thereof.  The  parties  owning  these  lodes 
are  incorporated  companies.  The  seventh  section  of  the 


23 

act  of  May  10,  1872,  provides:  'That  where  an  adverse 
claim  shall  be  filed  during  the  period  of  publication,  it 
shall  be  upon  the  oath  of  the  person  or  persons  making 
the  same.'  It  does  not  provide  that  it  may  be  upon  the 
oath  of  an  agent  or  attorney.  Without  statutory  authority 
an  attorney  cannot  make  the  oath  for  his  client.  I  find 
myself  obliged  to  advise  that  the  above-named  adverse 
claims  were  not  properly  verified,  and  for  that  reason 
should  be  rejected."  (Copp.,  175,  176.) 

It  is  hardly  necessary  to  add  that  the  law  of  the  land 
office  on  this  subject  is  now  too  clear  to  be  misunderstood. 

The  second  ground  on  which  the  counsel  for  the  Mono 
Company  base  their  position  that  the  Magnolia  adverse 
claim  is  informal  and  insufficient,  is,  perhaps,  the  most 
remarkable  position  of  their  whole  argument.  These  are 
their  precise  words: 

"  But  the  adverse  claim  is  informal  and  insufficient  for 
another  reason.  The  parties  claim  by  purchase,  and  do 
not  show  or  prove  the  citizenship  either  of  the  original  lo- 
cators or  the  parties  to  the  several  alleged  mesne  convey- 
ances, through  which  they  claim  to  have  derived  their 
title.  This  defect  is  fatal,  under  the  ruling  of  the  depart- 
ment in  the  celebrated  New  Idria  case,  rendered  August  4, 
1871." 

Is  it  possible  that  the  Commissioner  is  expected  so 
thoroughly  to  misunderstand  the  nature  of  an  adverse 
claim  and  the  ruling  in  the  New  Idria  case  as  to  suppose 
that  this  proof  of  citizenship  must  be  a  part  of  the  ad- 
verse claim,  or  that  the  department  has  ever  made  any  such 
decision? 

To  begin  with  the  decision  referred  to,  the  case  before 
the  department  was  the  application  of  the  New  Idria  Com- 
pany for  a  patent.  The  question  was,  not  on  the  suffi- 
ciency of  an  adverse  claim,  but  on  the  final  issue  of  the 
patent  by  the  Government  to  the  applicants  themselves. 
Most  properly  the  department  decided  that  without  proof 
of  citizenship  the  New  Idria  Company  could  not  have  their 
patent.  Furthermore,  the  question  pertained,  not  to 
the  form  of  the  application,  but  to  the  proof  on  the  hear- 


24 

ing.  The  decision  was  not  that  the  application  was  infor- 
mal and  insufficient  for  want  of  proof  of  citizenship,  but 
that  the  patent  could  not  be  granted  without  such  proof. 
The  time  to  suggest  an  application  of  this  decision  to  the 
Magnolia  Company  will  be  when,  after  a  favorable  adjudi- 
cation by  the  courts,  they  come  to  the  land  office  with 
their  judgment  roll  and  ask  for  the  patent.  Then,  and  not 
till  then,  will  they  be  called  on  for  the  affidavits  of  citi- 
zenship provided  for  by  section  7  of  the  mining  act  of 
1872.  But  even  if  it  had,  in  fact,  been  decided  in  the  New 
Idria  case  that  the  original  application  for  a  patent  is  in- 
formal and  insufficient,  unless  affidavits  of  citizenship 
shall  constitute  a  part  of  or  accompany  the  application,  it 
would  not  follow  that  an  adverse  claim  would  be  informal 
and  insufficient  without  such  affidavits.  For  the  adverse 
claim  is  a  mere  protest.  The  same  fullness,  completeness, 
and  precision  are  not  required  in  the  adverse  claim  as  in 
the  application  itself,  as  was  shown  on  pages  24  and  25  of 
my  former  argument.  Therefore  the  New  Idria  decision, 
even  if  it  had  been  in  that  form,  would  not  be  a  rule  for 
the  adverse  claim  now  in  question.  And  yet  there  would 
have  been  some  plausibility  in  the  argument.  But  what 
shall  be  said  of  reasoning  which  would  take  a  decision 
that  an  applicant  for  a  patent  must,  before  he  receives  his 
patent,  show  by  affidavits  his  citizenship,  (not  aver  it  in 
the  application  itself,)  and  would  make  that  decisive  of  the 
position  that  an  adverse  claim  in  informal  and  insufficient 
unless  it  embraces  such  affidavits  of  citizenship. 

Now,  shall  the  Mono  claimants  use  against  others  an  ar- 
gument which  is  fatal  to  themselves?  If  the  New  Idria 
decision  makes  proof  of  citizenship  essential  to  the  appli- 
cation for  a  patent,  their  own  application  is  informal  and 
insufficient.  For  their  affidavits  of  citizenship,  excepting 
those  of  Gisborn  and  W.  E.  Miller,  were  not  only  not  filed 
with  the  application,  but  were  never  filed  in  the  local  land 
office  at  all.  They  were  filed,  six  in  number,  by  counsel, 
in  the  General  Land  Office,  July  10,  1874,  several  days  after 
my  former  argument  was  filed  in  the  case.  They  were,  in 


25 

fact,  not  made  until  June,  1874.  It  is  true  that  the  origi- 
nal application  contained  an  averment  of  citizenship;  but 
that  averment  was  not  required  by  the  statute  to  be  em- 
braced either  in  the  application  or  adverse  claim.  The 
seventh  section  of  the  act  of  May  10, 1872,  does  not  require 
citizenship,  like  the  nature  of  the  adverse  claim,  to  be 
averred  or  shown,  but  requires  proof  of  the  same.  And 
the  commissioner,  in  the  first  section  of  his  circular  of 
September  7,  1871,  which  contains  Jive  provisions  for  appli- 
cants, and  not  one  for  adverse  claimants,  requires  as  proof  of 
citizenship  an  affidavit  from  each  claimant.  (Copp,  267.) 

This  branch  of  the  attack,  therefore,  is  but  a  repetition 
of  the  old  story  of  the  "  good,  honest  citizen,"  who,  before 
he  "swears  the  law  on"  his  neighbor  for  counterfeiting, 
finds  it  prudent  to  dodge  into  a  dark  alley  and  empty  his 
own  pockets  of  counterfeit  coin.  So  far  as  proof  of  citi- 
zenship is  concerned,  it  certainly  would  be  a  sweet-scented 
administration  of  land  office  justice  to  allow  the  Mono 
claimants  to  cast  stones  at  their  Magnolia  competitors. 

III. 

The  next  point  of  the  counsel  is,  that  the  question  of  the 
formal  sufficiency  of  the  adverse  claim  is  not  res  judicata, 
because  the  adverse  claim  has  been  waived.  I  think  that 
no  one  except  the  counsel  themselves,  will  ever,  upon 
full  examination  of  the  case,  conclude  that  the  adverse 
claim  has  been  waived.  But  suppose  it  had  been  waived. 
The  local  land  officers  did  not  decide  that  it  had  been 
waived.  They  decided  that  it  was  insufficient,  reversing 
a  previous  decision  of  the  same  question  by  the  same 
office.  If  the  local  land  officers  had,  in  their  last  pro- 
ceedings, decided  that  the  adverse  claim  had  been  waived, 
the  question  so  decided  would  not  have  been  res  judi- 
cata.  But  when  they  decided  that  it  was  formally  in- 
sufficient, they  did  decide  a  question  which  had  already 
been  settled.  The  original  formal  sufficiency  of  the  ad- 
verse claim  was  not  affected  by  any  subsequent  waiver,  one 
way  or  the  other.  The  mistake  of  the  counsel  in  this  re- 
4 


gard  "  is  so  plain  that  extended  discussion  of  the  point  is 
not  necessary."  But  then,  if  the  adverse  claim  has  been 
waived,  the  question  of  its  original  character  of  course 
ceases  t<>  be  important. 

The  counsel  also  think  that,  inasmuch  as  the  adverse 
claim  was  in  their  opinion  virtually  waived,  the  adverse 
claimant  was  not  entitled  to  notice  of  the  proceedings  in 
which  it  was  adjudged  to  have  been  (not  waived,  but) 
originally  informal  and  insufficient.  To  state  this  proposi- 
tion is  to  refute  it. 

IV. 

The  counsel  insist  that  the  Mono  location  is  sufficient, 
both  upon  principle  and  under  the  authorities,  to  entitle 
the  Mono  applicants  to  a  patent  on  the  application  now 
before  the  Commissioner.  This  is  their  precise  language  : 

"  We  do  not  dissent  from  the  position  assumed  by  the 
attorney,  that  one  person  could  not  take,  by  location,  more 
than  two  hundred  feet  on  a  lode  or  vein,  or  that  seven  per- 
sons could  not  take  more  than  fourteen  hundred  feet;  but 
we  deny  his  proposition  that  the  whole  location  was  in- 
valid and  void  because  the  parties  included  two  hundred 
feet  more  in  their  location  than  they  were  entitled  to,  and 
contend  that  the  location  was  good  and  valid  to  the  extent 
of  fourteen  hundred  feet,  the  amount  they  were  entitled  to 
take." 

That  is  to  say,  they  think  that  if  a  joint  location  of  1,600 
feet  by  seven  claimants,  in  seven  undivided  shares,  is  not 
valid,  either  for  the  whole  of  the  1,600  feet,  or  for  seven 
undivided  eighths  of  the  1,600  feet,  it  is  nevertheless  valid 
for  the  whole  of  1,400  feet;  that  thereafter  an  eighth 
party,  by  locating  an  undivided  share,  as  W.  E.  Miller  did, 
in  the  same  1,600  feet,  acquires  all  of  the  1,600  feet  which 
was  not  acquired  by  the  first  locators,  viz,  the  whole  of  the 
remaining  200  feet;  that  the  Commissioner  can  thereupon, 
by  patching  together  the  1,400  feet,  in  which  the  last 
locator  has  no  interest,  and  the  200  feet  in  which  the  first 
locators  have  no  interest,  on  one  application  made  by  all 


the  parties  jointly,  issue  a  patent  for  the  whole  1,600  feet 
in  undivided  shares  to  the  eight  locators  or  their  representa- 
tives. And,  of  course,  upon  the  same  principle,  they  would 
claim  that  five  persons,  by  locating  five  undivided  shares 
in  1,600  feet,  acquire  the  whole  of  1,000  feet,  so  that  three 
other  claimants  may,  by  subsequently  locating  three  un- 
divided shares  in  the  same  1,600  feet,  acquire  the  whole 
of  the  remaining  600  feet,  and  thei)  the  eight  locators  may 
patch  their  two  claims  together,  and  upon  one  joint  appli- 
cation obtain  a  patent  for  eight  undivided  shares  of  the 
whole;  and  on  the  same  principle  would  also  claim  that 
one  person  may,  by  a  location  of  1,600  feet,  acquire  the 
whole  of  200  feet,  so  that  seven  other  claimants  may, 
by  a  subsequent  location  of  seven  undivided  shares  in  the 
same  1,600  feet,  acquire  the  whole  of  the  remaining  1,400 
feet;  and  the  eight  locators  may  unite  their  two  claims  in 
a  common  application,  and  demand  thereon  a  patent  for 
eight  undivided  shares  in  each  and  all  of  the  1,600  feet. 

This  theory  of  the  counsel,  respecting  the  Mono  loca- 
tions, involves  the  following  aggregation  of  errors : 

(1)  That  seven  men,  by  a  futile  location  of  the  whole  of 
1,600  feet  in  undivided  shares,  took  the  whole  of  1,400  feet 
in  undivided  shares. 

(2)  That  the   eighth   man,  W.  E.  Miller,  by  an  equally 
futile   location   of  an   undivided  eighth   part  of  the  same 
1,600  feet,  took  the  whole  of  the  200  feet  not  taken  by  the 
others. 

(3)  That  these  two  distinct  parcels,  through  some  necro- 
mancy, subsequently  became  so  metamorphosed  that  the 
eighth  man  exchanged  his' separate  right  to  the  whole  of 
the  200  feet,  for  a  common  and  undivided  interest  in  the 
whole  1,600  feet. 

(4)  That  the  seven  men,  by  some  similar  hocus  pocus, 
acquired  undivided  interests  in  common  with  the  seventh 
man  in  the  whole  1,600  feet,  in  lieu  of  their  right   to  the 
whole  of  the  1,400  feet. 

(5)  That,  to  suit  this  emergency,  the  mining  system  is 
to  be  so  stretched  and  twisted  that  two  parcels — so  sought 


28 

in  common,  but  caught  in  severalty — may  be  mixed  up  in 
hotch  pot  in  the  application  for  a  patent;  and — 

(6)  That  the  land  department  will  plaster  over  these  ab- 
surd illegalities  with  a  patent  which  will  conceal,  if  it  does 
not  cure  them. 

To  save  the  locations,  the  undivided  interests  are  to  be 
severed,  arid  then,  to  save  the  application  for  a  patent,  they 
are  to  be  spliced  together.  But  this  Jfono-mania  for  disin- 
tegration, redintegration,  and  transmogrification  cannot  be 
humored.  The  law  and  logic  are  as  bad  as  the}7  would  be 
if  two  "poor  but  honest"  batchers,  having  negotiated  for 
undivided  shares  in  one  hog,  and  found  their  negotiations 
failures,  should  pretend,  nevertheless,  to  the  acquisition  of 
separate  estates  in  the  head  and  tail,  and  thereupon,  in- 
stead of  asking  for  separate  bills  of  sale  of  the  head  and 
tail,  should  boldly  demand  an  undivided  conveyance  of 
"the  whole  hog."  The  counsel  believe  this  position  too 
manifestly  sound  to  require  any  argument.  I  consider  it 
too  unsound  to  require  any  argument  on  the  principle  in- 
volved additional  to  that  heretofore  submitted. 

So  far  as  the  authorities  are  concerned,  the  counsel  seem 
to  me  to  be  equally  mistaken.  I  believe  that  their  posi- 
tion has  never  been  adopted  in  any  ruling  of  the  land 
office;  that  there  never  was  a  case  in  which  two  such  loca- 
tions were  united  in  one  application,  and,  even  in  the  ab- 
sence of  adverse  claims,  patented  in  undivided  shares  to 
both  sets  of  claimants  on  such  application.  I  believe  that 
neither  the  Secretary  nor  Commissioner  ever  sanctioned  any 
such  administrative  legislation  as  that  would  amount  to. 
Indeed  I  am  not  sure  that  there  ever  was  a  case  where  the 
first  set  of  locators  (there  being  no  second  locators)  were 
permitted  to  take  a  patent  for  undivided  shares  in  a  reduced 
area,  upon  an  unamended  application  for  the  whole  area, 
even  in  the  absence  of  adverse  claims.  That  the  depart- 
ment would  permit  such  first  and  sole  locators  to  take 
such  reduced  amount,  upon  locations  made  de  wovo,  in  the 
absence  of  adverse  claims,  I  have  no  doubt.  That  it  might 
be  permitted  in  clear  cases,  in  the  absence  of  adverse 


29 

claims,  upon  amended  application,  and  new  publication,  is 
possible.  But  that  two  sets  of  such  claimants,  so  locating 
two  severalties,  will  ever  be  permitted  to  join  their  irregu- 
larly-acquired several  ties  in  one  common  application,  and 
on  that  application,  without  either  new  location,  amended 
application,  or  new  publication,  obtain  a  patent  of  undi- 
vided shares  in  the  whole  of  both  parts,  in  the  presence  and 
against  the  protest  of  adverse  claimants,  I  cannot  believe. 
Let  us  examine  the  decisions  which  the  counsel  think  make 
their  position  so  clear  as  to  require  only  to  be  stated. 

In  the  case  of  the  San  Augustin  Mining  Company,  claim- 
ing 3,000  feet,  it  was  decided,  on  the  22d  of  September, 
1870,  that  under  the  act  of  July  26,  1866,  and  the  territo- 
rial law  fixing  the  maximum  of  a  company  location  at 
1,500  feet,  uno  company  location  can  exceed  1,500  linear 
feet  along  the  course  of  the  vein  or  lode;  and  such  loca- 
tion cannot,  in  any  case,  be  made  at  a  rate  exceeding  200 
feet  to  each  member  of  the  company,  (except  one  of  them 
is  the  discoverer,  to  whom  200  feet  additional  are  allowed,) 
and  to  allow  a  company  to  locate  (since  the  passage  of  said  act 
of  Congress]  such  quantity  as  would  exceed  200  feet  to  each  mem- 
ber, other  than  the  discoverer,  would  be  illegal  and  void."  (Copp, 
34.)  In  that  case  the  attempt  by  the  San  Augustin  Com- 
pany to  locate  3,000  feet  in  undivided  shares  was  not 
followed  by  an  attempt  of  others  to  locate  undivided  shares 
in  the  same  3,000  feet,  or  by  an  attempted  consolidation 
in  one  application  of  interests  so  acquired  in  severalty  with 
a  demand  for  a  patent  of  undivided  interests  in  the  whole 
to  both  sets  of  claimants.  And  yet,  even  in  that  case,  the 
location  was  held  illegal  and  void.  Obviously  there  is  in  the 
case  no  authority  for  the  claim  that  the  original  and  subse- 
quent irregular  locations  of  the  Mono  Company  secured  to 
the  first  locators  the  whole  1,400  feet  nearest  to  the  discovery 
hole,  and  to  the  subsequent  locator  the  whole  of  200  feet 
more,  and  entitled  them  altogether  to  a  patent  in  undivided 
shares  of  the  whole  of  the  1,600  feet  on  a  joint  applica- 
tion of  all  the  parties. 

The  case  of  the  San   Xavier  mine  was  decided  bv  the 


30 

commissioner,  July  10,  1873.  (Copp,  210.)  In  that  case 
five  persons  located  3,600  feet,  undivided,  after  the  passage 
of  the  act  of  July  26,  1866.  It  was  not  an  attempt  to 
claim  the  entirety  of  1,000  feet,  and  to  supplement  the  loca- 
tion by  causing  thirteen  other  persons  to  locate  undivided 
shares  in  the  same  3,600  feet,  so  as  to  acquire  the  entirety 
of  the  remaining  1,600  feet,  and  by  uniting  these  two  in- 
tegral parts  to  make  an  undivided  whole  of  3,600  feet, 
for  which  a  single  joint  application  could  be  made,  as  the 
basis  of  one  patent.  .  There  were  no  subsequent  "undi- 
vided" locators,  or,  so  far  as  the  decision  shows,  any  other 
claimants  of  any  kind.  The  decision  of  the  commissioner 
was  in  these  words  : 

"There  was,  then,  on  the  eleventh  .September,  1866, 
no  authority  of  law  for  the  location  of  thirty-six  hundred 
feet  of  a  lode  by  five  persons,  twelve  hundred  feet  being 
the  greatest  extent  then  subject  to  location  by  five  persons, 
provided  they  were  the  discoverers,  or  one  thousand  feet 
if  claimed  simply  as  locators;  and  this  office  is  accordingly 
unable  to  issue  a  patent  upon  said  application  as  it  now  stands, 
being  for  three  thousand  feet  on  the  Xavier  mine." 

This  virtually  required  the  application  to  be  changed. 
The  claimants  were  notified  that  they  could  take  1,200 
feet,  but  the  plat  and  field-notes  would  have  to  be  amended  accord- 
ingly. In  this  case,  therefore,  the  Commissioner  required 
that  the  application  and  the  plat  and  field-notes  should  be 
amended  before  the  patent  would  be  issued.  He  also  gave 
an  option  of  relocations  under  the  act  of  1872.  It  is  hardly 
necessary  to  suggest  that  the  case  of  the  Mono  claimants 
finds  no  support  in  this  decision. 

So  the  case  of  the  Gus  Belmont  mine,  decided  August 
14,  1873,  (Copp.  216,)  in  which  there  were  only  one  set  of 
locators,  who  claimed  3,000  feet,  and  were  only  entitled  to 
1,000  feet,  was  sent  back  by  the  Commissioner,  and  a  new 
survey  ordered. 

Nor  has  any  decision  ever  been  made  in  homestead  or 
pre-emption  cases  which,  by  any  possible  ingenuity,  can  be 
tortured  into  an  authority  for  the  present  Mono  claim  of  a 
patent  for  the  whole  of  1,600  feet  on  the  application  now 


31 

before  the  Commissioner.  What  difference  does  it  make 
with  the  present  case  whether  the  Department  will  or 
will  not  grant  a  patent  in  a  homestead  or  pre-emption 
case,  for  a  diminished  quantity  of  land,  without  an  amend- 
ment of  the  entry,  even  if  that  is  true?  Will  it  be  pre- 
tended that  there  ever  was  a  homestead  or  pre-emption 
case  in  which  seven  persons,  having  a  right  to  locate  a 
certain  quantity  of  land  in  undivided  shares,  attempted  to 
locate  a  greater  quantity  in  undivided  shares,  and  subse- 
quently an  eighth  person  attempted  to  locate  an  undivided 
share  in  the  same  land,  and  then,  on  the  pretense  that  the 
first  seven  locators  acquired  the  entirety  of  seven-eighths  of 
the  land,  and  the  eighth  locator  acquired  the  remaining 
eighth  separate  and  entire,  the  Land  Department  granted  a 
joint  patent  on  a  joint  application  for  the  whole?  Cer- 
tainly not.  How  is  it  material,  then,  to  cite  the  practice  of 
the  land  office  in  homestead  and  pre-emption  cases,  where 
such  company  locations  are  unheard  of,  any  more  than  it 
would  be  to  cite  the  practice  of  the  Internal  Revenue  Bu- 
reau in  whiskey  or  tobacco  cases? 

HALBERT  E.  PAINE, 
Counsel  for  Magnolia  Company. 


General  Land  Office,  Washington,  D.  C. 


MAGNOLIA  MINING  COMPANY  et  al. 


MONO  MINING  COMPANY. 


REPLY  TO  ADDITIONAL  ARGUMENT  OF  COUNSEL  FOR  MONO  MIN- 
ING COMPANY. 


The  additional  argument  for  the  Mono  claimants  is 
mainly  based  upon  the  opinion  that  the  district  court  of 
Utah  either  has  no  jurisdiction  at  all  of  proceedings  to  de- 
termine the  question  of  the  right  of  possession  of  mining 
property,  except  by  virtue  of  section  7  of  the  act  of  May 
10,  1872,  or  has  no  jurisdiction  of  such  proceedings  as  are 
mentioned  in  section  7,  except  by  virtue  of  the  provisions  of 
that  section.  This  opinion,  whichever  form  it  takes,  is 
wholly  erroneous.  Section  7  recognizes,  but  does  not  con- 
fer, jurisdiction.  Independently  of  that  section,  the  court 
has  jurisdiction  of  every  question  which  can  possibly  be 
involved  in  the  proceedings  to  determine  the  right  of  pos- 
session therein  mentioned.  And  such  jurisdiction  does 
not  begin  with  the  filing  of  the  adverse  claim,  or  with  the 
filing  of  the  application  for  a  patent,  but  it  vests  from  the 
incipiency  of  a  conflict  between  possessory  claims  under 
the  mining  laws.  By  the  first  section  of  the  act  of  July 
26,  1866,  these  possessory  rights  were  subjected  to  local 
laws,  customs,  and  rules,  not  in  conflict  with  the  laws  of 
the  United  States.  By  section  5  of  the  same  act  it  is  pro- 
vided— 

"  That  as  a  further  condition  of  sale,  in  the  absence  of 


necessary  legislation  by  Congress,  the  local  legislature  of 
any  State  or  Territory  may  provide  rules  for  working  mines 
involving  easements,  drainage,  and  other  necessary  means 
to  their  complete  development;  and  those  conditions  shall 
be  fully  expressed  in  the  patent." 

These  provisions  involved  a  concession  of  jurisdiction  to 
the  local  courts,  by  whom  such  laws  are  administered. 
This  jurisdiction  is  recognized  in  section  6  by  a  provision — 

"  That  whenever  any  adverse  claimants  to  any  mine,  lo- 
cated and  claimed  as  aforesaid,  shall  appear  before  the  ap- 
proval of  the  survey,  as  provided  in  the  third  section  of 
this  act,  all  proceedings  shall  be  stayed  until  final  settle- 
ment and  adjudication,  in  the  courts  of  competent  jurisdiction, 
of  the  rights  of  possession  to  such  claim,  when  a  patent 
may  issue  as  in  other  cases." 

And  it  is  recognized  in  section  9  by  this  provision  : 

"  That  whenever,  by  priority  of  possession,  rights  to  the 
use  of  water  for  mining,  agricultural,  manufacturing,  or 
other  purposes,  have  vested  and  accrued,  and  the  same  are 
recognized  and  acknowledged  by  the  local  customs,  laws,  and 
the  decisions  of  courts,  the  possessors  and  owners  of  such 
vested  rights  shall  be  maintained  and  protected  in  the  same; 
and  the  right  of  way  for  the  construction  of  ditches  and  ca- 
nals for  the  purposes  aforesaid  is  hereby  acknowledged  and 
confirmed :  Provided,  however,  That  whenever,  after  the 
passage  of  this  act,  any  person  or  persons  shall,  in  the  con- 
struction of  any  ditch  or  canal,  injure  or  damage  the  pos- 
session of  any  settler  on  the  public  domain,  the  party  com- 
mitting such  injury  or  damage  shall  be  liable  to  the  party 
injured  for  such  injury  or  damage." 

By  the  first,  third,  and  fifth  sections  of  the  act  of  May 
10,  1872,  the  concession  is  renewed  or  recognized  anew. 
And  the  jurisdiction  is  recognized,  although  not  granted, 
by  the  clause  of  section  7  relating  to  the  prosecution  of 
"  proceedings  to  determine  the  question  of  the  right  of 
possession." 

But,  if  there  could  possibly  be  any  lack  of  jurisdiction 
in  the  premises  in  a  State  court,  there  can  be  none  in  the 
district  court  of  Utah,  which  is  a  Territorial  court  estab- 
lished by  the  United  States,  and,  under  the  statutes,  com- 
bines with  the  function  of  administering  the  local  laws 


B 

two  other  functions  which  a  State  court  does  not  exercise, 
viz,  the  administration  of  laws  of  the  United  States  locally 
applicable  to  Utah  under  section  3,  article  4,  of  the  Con- 
stitution, and  also  the  precise  jurisdiction  conferred  by 
statute  under  the  Constitution  upon  the  district  courts  of 
the  United  States.  The  judicial  administration  of  this 
court  therefore  covers  the  whole  ground  of  federal  and 
local  legislation  and  constitutional  provision. 

It  would  be  difficult  to  conceive  more  radical  miscon- 
ceptions of  the  law  of  this  case  than  those  which  are  in- 
volved in  the  following  propositions  of  counsel : 

"Before  that  relation  is  established  by  an  application 
on  one  side  and  an  adverse  claim  on  the  other,  made  and 
filed  in  the  time,  form,  and  manner  prescribed  by  the  act 
of  May  10,  1872,  the  Government  takes  no  notice  what- 
ever of  controversies  arising  between  parties  claiming 
mines,  and  neither  the  court,  nor  any  officer  nor  tribunal 
of  the  Government,  are  authorized  or  empowered  to  exer- 
cise jurisdiction  over  them  or  to  decide  or  settle  them." 
(P.  2.) 

"After  an  application  is  made  and  an  adverse  claim  filed, 
the  controversy  involves  not  merely  the  right  of  possession 
or  occupancy,  but  the  right  to  a  patent,  and  the  judgment 
(rendered  on  a  suit  commenced  thereafter)  when  certified 
to  the  land  office  entitles  the  successful  party  not  merely 
to  the  possession  of  the  claim,  but  to  a  patent  from  the 
Government.  This  controversy  as  to  the  right  to  a  patent 
cannot  arise  before  the  filing  of  the  application  and  the 
adverse  claim  in  the  land  office,  as  that  is  the  mode  and 
the  only  mode  provided  by  law  for  its  initiation.  It  is 
this  controversy  thus  initiated,  and  this  only,  which  Con- 
gress authorizes  the  courts  to  take  jurisdiction  of  and 
settle  by  judgment."  (Pp.  3,  4.) 

"The  only  judgment  the  land  office  can  consider  is  a 
judgment  in  a  suit  commenced  after  the  filing  of  the  appli- 
cation and  an  adverse  claim,  to  ascertain  and  determine 
which  party  has  the  better  right  under  the  mining  laws  to 
a  patent  to  the  ground  adversely  claimed.  This  can  only 
be  shown  by  the  application  and  the  adverse  claim."  (P. 
4.)- 

"  When  the  adverse  claim  is  filed,  a  question  is  for  the 


first  time  raised  as  to  the  legitimacy  and  regularity  of  the 
claim  and  application,  and  the  act  of  1872  provides  that 
that  question  shall  be  decided  by  the  courts  (or  the  adverse 
claim  waived)  before  patent  can  issue."  (P.  5.) 

"Its  jurisdiction  is  confined  to  deciding  which  party  has 
the  better  right  to  a  patent  for  the  premises  shown  to  be  in 
dispute  by  the  surveys  on  file  in  the  land  office."  (P«  7.) 

"It  does  not  direct  or  allow  a  suspension  for  the  trial  of 
any  other  right  or  controversy,  nor  provide  for  a  continu- 
ance of  the  suspension  beyond  thirty  days  from  the  time 
issue  is  joined,  unless  within  that  time  the  adverse  claimant 
commences  a  suit  to  determine  and  settle  the  question  in- 
volved, viz,  the  right  of  the  applicant  to  a  patent  to  the 
ground  in  controversy,  in  the  land  office."  (P.  12.) 

The  language  of  the  law  makes  the  proceeding  referred 
to  in  section  7  of  the  act  of  May  10,  1872,  a  proceeding 
"  to  determine  the  question  of  the  right  of  possession/' 
The  law  does  not,  as  the  counsel  insist,  make  the  action 
in  court  a  proceeding  to  decide  who  is  entitled  to  a  pat- 
ent, or  to  decide  the  legitimacy  and  regularity  of  the 
claim  and  application.  The  law  does  not  provide  that  the 
question  at  issue  can  only  be  determined  in  the  court  by 
the  application  and  adverse  claim.  Under  the  law,  the 
courts  have  nothing  whatever  to  do  with  the  legitimacy 
or  regularity  of  the  application  for  a  patent  or  of  the  ad- 
verse claim.  But  they  have  complete  jurisdiction  of 
every  question  possibly  involved  in  the  possessory  action 
referred  to  in  section  7.  And  this  jurisdiction  is  just  as 
complete  before  as  after  the  application  or  adverse  claim 
is  filed.  The  possessory  action  may  be  commenced  when- 
ever the  conflict  of  possessory  rights  occurs.  The  Law 
Reports  of  the  mining  States  and  Territories  abound  in 
such  cases. 

The  court  does  not  adjudge  that  the  successful  party  is 
entitled  to  a  patent,  but  that  he  is  entitled  to  possession. 
Section  7  does  not  authorize  an  adjudication  of  the  title  to 
the  patent  by  the  court,  but  it  provides  that  the  party  ad- 
judged entitled  to  possession  shall,  upon  proof  that  the 
requisite  amount  of  labor  has  been  performed,  or  improve- 


ments  made,  and  upon  filing  the  proper  description  and 
paying  the  proper  price  and  fees,  receive  a  patent  from  the 
General  Land  Office. 

It  is  true,  as  the.  counsel  say,  that  the  property  in- 
volved in  the  proceedings  in  court  and  in  those  before  the 
land  office  must  be  the  same;  but  it  is  a  new  idea  that 
property  which  has  not  been  officially  surveyed  cannot  be 
identified.  It  is  also  true  that  A  cannot  sue  B  this  year 
for  a  cause  of  action  which  may  accrue  next  year.'  But 
what  that  has  to  do  with  A's  right  to  sue  B  this  year  for 
the  possession  of  A's  mine,  unlawfully  appropriated  by  B 
last  year,  it  is  not  easy  to  perceive. 
The  counsel  say,  on  page  8 : 

"The  Anderson  case,  cited  by  counsel,  is  not  applicable 
to  the  one  under  consideration.  The  statute  under  which 
that  case  arose  was  simply  and  purely  a  statute  of  limita- 
tions and  restrictions.  Instead  of  conferring  rights  upon 
the  parties,  it  was  intended  to  abridge  them  and  to  de- 
prive them  of  the  privilege  of  asserting  them  after  a  cer- 
tain time." 

In  view  of  the  fact  that  the  captured  and  abandoned 
property  act,  under  which  the  Anderson  case  arose,  con- 
ferred the  original  authority  to  bring  the  actions  therein  named, 
while  section  7  of  the  mining  act  of  1872  confers  no  author- 
ity to  bring  suit  at  all,  but  only  recognizes  that  which  already 
existed,  it  is  impossible  not  to  admire  the  boldness  of  the 
foregoing  assertion. 

Not  less  glaring  is  the  misconstruction  of  the  case  of  the 
Bullion  Mining  Company.  Notwithstanding  the  differ- 
ences between  the  acts  of  1866  and  1872,  if  the  precise  con- 
test originated  by  the  application  and  adverse  claim  is 
alone  cognizable  by  the  courts  under  the  latter  act,  just  as 
certainly  was  the  contest  so  originating  alone  cognizable 
by  the  courts  under  the  former  act.  And  if,  as  the  counsel 
insist,  the  elements  of  such  an  action  could  not,  in  the  na- 
ture of  things,  exist  twelve  days  before  the  filing  of  the 
adverse  claim  in  the  present  case,  just  as  certainly  could 


6 

they  not  exist  in  the  case  of  the  Bullion  Mining  Company 
two  years  before  the  filing  of  the  application. 

The  Commissioner  will  see,  by  a  reference  to  the  cases 
of  the  San  Augustine,  San  Xavier,  and  Gus  Belmonte, 
that  my  statements  respecting  those  cases  are  absolutely 
accurate  in  every  particular. 

In  my  reply  to  the  former  argument  of  counsel,  I  stated 
the  fact  that  the  ejectment  was  commenced  after  the  appli- 
cation for  a  patent  was  filed,  because  such  was  the  fact;  not, 
as  the  counsel  suppose,  for  the  purpose  of  drawing  a  dis- 
tinction between  actions  commenced  before  and  after  the 
filing  of  the  application.  It  happened  to  be  the  fact  in  the 
pending  case  that  the  preparations  for  the  ejectment  and 
adverse  claim  were  carried  on  simultaneously,  and  were 
first  completed  in  the  case  of  the  ejectment  suit. 

HALBERT  E.  PAINE, 
Attorney  for  Magnolia  Claimants. 


